Legman Pty Limited v Council of the City of Sydney - [2005] NSWLEC 640

Land and Environment Court

of New South Wales

CITATION:
Legman Pty Limited v Council of the City of Sydney [2005] NSWLEC 640

PARTIES:
APPLICANT
Legman Pty Limited
RESPONDENT
Council of the City of Sydney

FILE NUMBER(S):
10779 of 2005

CORAM:
Moore C

KEY ISSUES:
Development Application :-
Nightclub
Hours of trading
Consent conditional on sale of business
.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Central Sydney Local Environmental Plan 1996
Central Sydney Development Control Plan 1996
.

CASES CITED:
Vinson v Randwick Council [2005] NSWLEC 142;
Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277;
Newbury District Council v Secretary of State for the Environment [1981] AC 578;
.

DATES OF HEARING: 4 October 2005

DATE OF JUDGMENT:

11/11/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr S Austin QC
INSTRUCTED BY
Phillips Fox
RESPONDENT
Mr P Clay, barrister
INSTRUCTED BY
Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

11 November 2005

05/10779 Legman Pty Limited v Council of the City of Sydney
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

JUDGMENT

The site

1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the Council of the City of Sydney (the council) of Development Application D/2004/01684 for extended trading hours for a nightclub in the La Bohem Hotel at 477 Pitt Street, Sydney (the site). The hotel comprises the ground floor and two lower floors of a heritage building which was the former headquarters of the Sydney Gas Company. The lower two levels operate as a nightclub known as “Gas” (the nightclub) and comprise the refurbished area of an old brick-lined gasometer on the site.

2 The former headquarters of the Sydney Gas Company has been redeveloped into a complex known as Sydney Central and is bounded by Pitt, Barlow, Parker and Hay Streets. However, entrances used for the nightclub are accessed from Pitt Street only as, during the relevant hours, alternative access points are blocked off.

3 There are no permanent residences (but there are several backpacker-style premises) in the immediate vicinity.

The inspection

4 I had the opportunity to inspect the nightclub, the relevant other elements of the site and to walk the adjacent portions of Pitt Street in company with the legal representatives of parties, their advisors and representatives of the New South Wales Police Service (the police).

5 Senior Constable Alina Carr is an officer with the licensing section of the City Central Local Area Command. She had acted as the command’s Licensing Sergeant between late September 2004 and mid June 2005.

6 Only one matter of physical design or operation arose during the course of the inspection of the nightclub. In the nightclub itself, Senior Constable Carr pointed out a number of areas where the police considered there is inadequate lighting thus leading to dark spaces which were conducive to the promotion of antisocial behaviour. The applicant agreed, during the subsequent hearing at the Court, to a condition of consent to address those concerns by specifying minimum lighting to be provided at those locations.

The application and its history

7 The proposed extended trading hours for the nightclub are from 10 p.m. until 6 a.m. seven days per week – although it is not intended, at the present time, that the nightclub will actually trade on all of those nights.

8 The application comes before the Court against the history that the proposed hours were permitted by following approval of an application for modification pursuant to s 96(1) of the Act consented to on 1 June 1999. These hours were subject to a 12-month trial commencing from the commencement of the use. The licence was upgraded from a nightclub licence to a hoteliers licence (for reasons not relevant to these proceedings) in August 1999 and the use commenced thereafter.

9 However, at the expiry of the trial, the proprietors did not seek any extension of those trial hours by further modification application but, nonetheless, continued to trade during those extended hours despite not having an approval to do so.

10 The present application was lodged with the council on 22 December 2004.

11 The council notified the application to surrounding properties and no objections were received in response. The sole objection to the proposed trading hours comes from the police who were asked for comment on 18 January 2005. The police objected, in late May 2005, for three reasons. These were:

Frequent violence within and in the vicinity of the premises. A list of 31 incidents was cited by the police.
Hours of operation. It was stated that the majority of the incidents occurred after midnight.
Operation as a restaurant. It was stated that the premises only operated as a nightclub and has no restaurant component.

12 The application was refused, under delegated authority, on 28 June 2005. Seven reasons were given by the council for refusal. These were:

The management of the Gas Nightclub have not demonstrated that they satisfactorily operate and manage the late night operations of the premises (after 12.00 midnight) in a responsible manner.
Based on the history relating to frequent incidents of violence within and in the vicinity of the premises, during its late night operations (after 12.00 midnight) over the past 18 months, as detailed in the Police response to Council, Council is not satisfied that the continuation of the previously approved extended hours of trade (until 6.00 am daily) will be in the public interest.
The proposal is not consistent with the objectives of Part 13 of the Central Sydney LEP 1996 - Special Provisions for Certain Uses, in relation to the impact of the proposal on the amenity of the locality.
The proposal is not consistent with the objectives of Part 9 of the Central Sydney DCP 1996 - Special Provisions for Certain Uses, in relation to the impact of the proposal on the amenity of the locality, the public safety aspects of the proposal, the proposed management of the use and the desired future character of the street.
The proposal does not comply with the provisions of the Policy on Trading Hours for New and Existing Premises, in relation to the extension of trial periods.
The proposal will have a detrimental impact on the existing and future amenity of the area and the desired character of the locality.
A current and detailed Code of Practice that includes a Security Management Plan for the premises has not been submitted to Council for consideration.

13 It is also appropriate to note that there do not appear to have been any third party complaints about the premises during the period of trial or post-trial (and un-consented) late trading as proposed to be regularised by this application.

14 There was also some passing discussion concerning the style of use of the ground floor of the premises, however I am satisfied that nothing of substance turns on that matter.

The planning framework

15 Although there was some discussion concerning the other grounds for refusal based on planning instruments and policies, the primary basis upon which refusal was urged by Mr Clay, barrister for the council, is the objections of the police. However, although, for the very large part, consideration of these matters is necessarily subsumed in addressing the police concerns, it is appropriate, for completeness, to set out the relevant provisions of the various council planning documents.

16 The relevant provisions of the Central Sydney Local Environmental Plan 1996 (the LEP) are contained in the general objectives in cl 12 and specific objectives in cls 60 and 61. The relevant portion of cl 12 reads:

12 The objectives of this Plan

vibrant, culturally diverse, multi-use city centre,

,

quality and amenity of the public areas

17 The relevant provisions of cls 60 and 61 read:

60 Objectives for amusement arcades, brothels, restricted premises, late opening pubs and the like

61 Amusement arcades, brothels, restricted premises, late opening pubs and the like

(a) the proposal would not have a detrimental impact on the amenity of the area and the desired character of the area,

18 The relevant provisions of the Central Sydney Development Control Plan 1996 (the DCP) are contained in cl 9.1.2 which reads, relevantly:

19 The cumulative effect of these provisions, in this case, is to provide a foundation, in the planning instruments, for the concerns expressed by the police. They do not, in my view, add any extra dimension to those concerns.

20 Also relevant are provisions of the council’s Policy on Trading Hours for New and Existing Premises (the trading hours policy) – there being no question as to the adequacy of the adoption process for this policy. The relevant provisions read:

2.2 Hours

City Centre Zone
Subject to all other aspects of the development being satisfactory, it is proposed that licensed premises in the City Centre zone under City of Sydney Local Environmental Plan 1996 shall be permitted to trade as follows:-

Standard hours: 8.00 a.m. - midnight 7 days a week;

1 year trial hours: 8.00 am to 2.00 am 7 days a week; or

Where residential uses are in close proximity; 8.00 am to 2.00 am Thursday, Fridays and Saturdays only.

2.3 General Provisions

Applications for the extension or review of trial periods

Applications for the extension or review of any trial period shall be subject to public notification, and referral to the Liquor Licensing Board and the local Police as to whether or not there have been any complaints or incidents connected with the premises in the past year.
If the premises has operated successfully in the first trial period a second trial period for extended hours may be granted for a trial period of up to 5 years.

If a premises fails its initial trial period (eg when there are consistent and supported complaints against the premises) no further trial shall be granted and the premise's minimum hours shall apply.
For existing licensed premises only one trial period is required (till 2.00 am or if existing hours are up to 2.00 am, for 24 hour operation) and then a trial period for up to 5 years.

21 With respect to the first of the matters called into play by the trading hours policy, the council has, by its past trial consent, indicated that strict compliance with these closing time requirements is not necessary. In the absence of any permanent residences in the vicinity, I consider that I should start from the same position of flexibility taken earlier by the council.

22 With respect to the second of the matters called into play by the trading hours policy, it does not appear, strictly speaking, to apply to the present application, as the application is one for an immediate and confirmed permanent extension of trading hours. It is not an application for the extension or review of the earlier trial period. In any event, the test of failure – being whether there are consistent and supported complaints against the premises does not arise given that, as earlier noted, there do not appear to have been any third party complaints about the premises during the period of trial or post-trial (and un-consented) late trading.

Future control of the premises

23 A relevant matter requiring consideration is that effective operational control of the business changed in mid-2005. At that time, Mr Simon Cooke and persons associated with him entered into a contract for the purchase of the business. Mr Simon Cooke and his associates are using, as their vehicle for purchase, a company known as Moshpit Pty Limited (Moshpit). Control of the business was also transferred from the present licensee and persons associated with him to Mr Cooke and persons associated with him.

24 With the exception of the present licensee, who will retain a 20 % interest in the business (but who will not remain the licensee of the premises), those who will be associated with the new venture were not associated with any previous control of nor have they taken part in the past management of the premises.

25 Mr Cooke is to become the new licensee and has recently undertaken the relevant training courses to permit him to do so. Mr Cooke has had the senior management role for the premises since the proposed contract was entered into in June.

26 The proposed purchase will not be completed unless these proceedings are concluded with the granting of consent for the extended trading hours.

27 Mr Cooke gave evidence and this is discussed later in these reasons.

The framework for consideration of the issues

28 In Vinson v Randwick Council [2005] NSWLEC 142, I set out (at para 12) the general principles applied by Tuor C in Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277. I then set out (at para 13) the principles to be applied when assessing applications for an extension of trading hours, increase in permitted patron numbers or additional attractions for licensed premises.

29 The questions to be addressed are:

What are the adverse impacts of the present trading hours, permitted number of patrons and permitted activities?

What measures are in place to address those impacts?

How are those measures documented?

Have those measures been successful?

What additional measures are proposed by the applicant or might otherwise be required?

30 In considering those questions in the present case, the present operational control and proposed changed future ownership of the business is of relevance.

31 In this context it is appropriate to note that, had there not been the proposed changed future ownership of the business, it is probable that I would have concluded that the application should be refused.

The police concerns

32 The police objections were amplified through the evidence, both oral and written, of Senior Constable Carr. The supporting material was supplied by her affidavit and she provided a further supplementary statement of evidence in response to material on behalf of the applicant. The overall effect of her evidence was that antisocial behaviour associated with the nightclub is unacceptable.

33 The supporting written evidence for the police position came from a variety of sources. The principal ones of these were printouts of numerous COPS incident records and CIDS intelligence information, on one hand, and the incident record books maintained by the operators of the nightclub on the other. A tabular summary of the matters regarded as particularly pertinent by the police was provided as Exhibit AC7 to Senior Constable Carr’s affidavit.

34 How I should interpret this document is, in my view, critical to the fate of the application. I have, therefore, considered the matters that have been set out in it in some detail and gone back to the source documents from which the summaries were derived. However, having done so, I have concluded that I do not need to set out an analysis them in detail for the purposes of this decision – merely to set out the conclusions which I consider should be drawn from Exhibit AC7.

35 The range of material recorded and the responses set out in Exhibit AC7 (as well as in the source documents of both the police and the management from which the information is obtained) in many respects comprise a two edged sword for the nightclub. On one hand, the documents reveal the matters of fact which give rise to the police concerns and, on the other hand, they reveal the ability and preparedness of the security staff to deal with these matters as they have arisen.

36 The more specific conclusions to be drawn are:

There have been a significant number of incidents involving altercations at or in the vicinity of the premises during the period covered by the survey – from the beginning of January 2004 to the end of June 2005; and

For many but not all of these incidents, the police had been involved; however

It is also clear that the incident books for the period maintained by the management of the premises have recorded a number of issues and instances of antisocial behaviour, ranging from inappropriate harassment of various kinds through to brawling, which are not featured in the police reports; and

Most (if not all) of those instances appear to have been dealt with, appropriately, by security staff engaged at the premises; and

There are also other instances recorded where it would appear that, without involvement from the police, security have prevented persons using false identity documents from entering the nightclub.

37 Mr George Smith, a town planning consultant, gave evidence on behalf of the applicant. He said that, on his calculations, between 50,000 and 85,000 patron visits had been made to the nightclub during some 8 months of the period referred to in Exhibit AC7. This evidence was uncontradicted.

38 As previously noted, a number of incidents are recorded which have, from the face of the documents, appropriately required and been accorded the intervention of the security staff but have not resulted in police involvement. Taken overall, I am satisfied that the number of incidents, compared to the patronage, is undesirably high but not, in the context of what is discussed in the following paragraphs, unacceptably high under the circumstances of the changed management and proposed sale to Moshpit.

39 Senior Constable Carr also gave evidence about the position since Mr Cooke assumed management of the nightclub.

5. In Paragraph 6.1.7 on page 9 Mr Smith states that relations with the Police have improved. I have found Mr Simon COOKE to be a more reliable Manager than the Licensee Mr Joshua CAMPBELL. I have held two (2) meetings in which Mr COOKE was present. During these meetings Mr COOKE has appeared to take an interest in the concerns that police have about the premises. The last meeting held was in August regarding the outcome of the audit for the 'Alcohol Linking Project'. Since this time he has made contact via email to inform me of an upcoming Minors Function event.

40 Mr Cooke gave evidence about his aspirations to change the management of the premises and his desire to respond to the police concerns. Although his demeanour in the witness box was not entirely convincing, I am prepared to accept that a deal of this arose from his inexperience with court processes and his not having given evidence in proceedings before.

41 A reasoned overall conclusion, in my view, is that the security staff appear to have addressed incidents as they occurred in a generally appropriate fashion but that the regime was a largely reactive one. On balance, the operational responses and the degree to which I am prepared to accept that Mr Cooke is genuine in his endeavours to effect change for the better are just sufficiently acceptable to warrant Mr Cooke and the proposed new ownership group being given a further chance to bring the premises to a better and confirmedly acceptable standard.

42 Both Senior Constable Carr and Mr Cooke were questioned about the management and behaviour of present security guards.

43 Senior Constable Carr confirmed the position outlined in her statement as being a present and continuing concern.

44 Mr Cooke gave evidence that he had not been satisfied with the activities of the security guards and that he had changed the security guard company, twice, since he had assumed management of the nightclub. However, although the company responsible has changed, nonetheless there still appears to have been a significant continuity of the operational security personnel at the site despite the changes in security company.

45 From approximately mid-September 2005, the present security company, Frontline Protection Services Pty Limited, has been undertaking the security work at the nightclub. A longtime security person at the premises is the manager of that company. Mr Cooke was of the opinion that this provided a valuable continuity of security services as well as an improvement in their management.

46 It also clear from the material that there have been inadequacies in the calculation or observance of trigger points for additional security service personnel being required. This is in addition to the other concerns expressed by Senior Constable Carr concerning signing on and recordkeeping by security personnel.

47 It is clear that there are inadequacies with the security staff recordkeeping and that there is a degree of tension between some of the security staff and the police, at least from the police perspective. These are critical issues which, although non-fatal in present application (given my conclusion that Mr Cooke should have a further trial period), if they are not addressed and remedied by Mr Cooke and those associated with him, they are likely to be be fatal to any extension of the trial period arising from this decision.

48 With respect to tensions between some of the security staff and the police, it would have been entirely inappropriate for me to seek to have individuals identified as to do so in these proceedings would necessarily occur in circumstances where they would have no ability to respond or defend themselves. However, it was clear that mere change of identity of the security company would not resolve the issues. What is needed, through counselling or some other appropriate process, is for the issues between police and any particular individual to be addressed and resolved - one way or another.

49 In addition, during the course of his evidence, Mr Cooke indicated that his familiarity with the incidents which might have occurred at the premises was a little less diligently pursued than would be appropriate. This is to be rectified by requirements in the plan of management and, too, will be of some criticality in any consideration of an extension of the now permitted trial.

50 Three other minor matters should be noted but dismissed from further consideration.

51 First, a further list of incidents was provided based on a police analysis process known as the 'Alcohol Linking Project'. This process endeavours to chart the location at which a person involved in an incident consumed their last alcoholic drink prior to the incident.

52 The analysis does not enable an appropriate comparison to be made between the causation of the incident and specific premises. For example, a motor vehicle accident may be many kilometres and some considerable time removed from the location of the last alcoholic consumption of the person involved in it but this incident will still be linked back to the premises through this analysis.

53 In my opinion, this material is of no assistance in considering the issues involved in this appeal. It may be of some policing utility as coarsely sieved data but does not have sufficient causal link, if any, with the premises where the alcohol was consumed to be relevant in these proceedings.

54 Second, although there was a minor conflict between the versions given by Mr Cook and Senior Constable Carr concerning his attempts to contact her to discuss policing matters, the senior constable conceded that it was possible that a telephone message had not been passed on to her. As a consequence, I do not regard this evidentiary conflict to be material.

55 Third, two police videos of operational walk-throughs of the premises and the adjacent street area were tendered. A viewing of them was of absolutely no assistance in the proceedings.

The plan of management

56 Mr Smith has also drafted a plan of management for the nightclub. The applicant proposes that this plan of management form part of the conditions of consent for the extended hours.

57 Mr Cooke gave evidence that the draft plan of management had been provided to him in about August 2005 and that he had already commenced the process of implementation although this was not completed. It was his evidence that he intended to implement the plan of management in its entirety.

58 On the other hand, Senior Constable Carr held reservations concerning the plan of management. In her second statement, she said:

13. Due to the seriousness of assaults it is important that patrons are not allowed to take glass/bottles or any containers off the premises. Security should collect glassware in the vicinity of the premises no matter what its source.

14. From the time of the premises opening at least 1 Security Officer should continuously patrol, monitor and maintain the queue to the premises. From 10pm at least 1 Security Officer should patrol the vicinity of the premises to ensure the quite and good order of the neighbourhood. From 12am this should be increased to 2 Security Officers.

15. All security are to sign their full name, Security licence number, signature and start/end times at the commencement of their shift.
16. All incidents involving the removal of intoxicated patrons, anti-social behaviour and assaults are to be brought to the attention of the Licensee/Duty Manager at the time of occurrence.

59 She also expanded upon these concerns in her oral evidence.

60 A number of other concerns relating to deficiencies in the plan of management were discussed during the hearing. Mr Austin QC, senior counsel for the applicant, was instructed that the applicant agreed to make changes to address all of these concerns.

61 I am satisfied that, therefore, that despite the deficiencies in the initial draft, the plan of management is capable of amendment to become an appropriate framework for operation of the nightclub.

62 In summary, the responses to the Vinson questions, therefore are:

What are the adverse impacts of the present trading hours, permitted number of patrons and permitted activities?

The impact of antisocial behaviour associated with the present operation of the premises is not precisely quantifiable but it is negative to the social amenity of the locality.

Additional measures will be provided through complete implementation of the plan of management (including the changes to the plan which will occur as a consequence of these proceedings).

Conclusion

63 I have concluded that, although there are genuine police concerns relating to antisocial behaviour and that there are attitudinal and procedural deficiencies, these are not so serious or so intractable as to warrant immediate refusal. On the other hand, I am not satisfied that I should give unqualified acceptance to the likely fulfilment of Mr Cooke’s aspirations to remedy and eliminate (to the extent that elimination is possible for any licensed premises) those matters of concern to the police.

64 I have, therefore, concluded that I should uphold the appeal but that there should be a further trial period during which Mr Cooke and those associated with him will have the opportunity to demonstrate that the police concerns can be resolved. I am only prepared to do so if the contract of sale to Moshpit is completed thus severing the link sufficiently (although, I accept, not completely) with the past management. A deferred condition of consent that the council be satisfied that the sale has been effected prior to permitted trading on the extended trial hours is therefore required. Such a condition, in my view, is appropriate and satisfies the Newbury tests (see Newbury District Council v Secretary of State for the Environment [1981] AC 578).

65 The operation of the extended hours will be permitted for a further trial period expiring on the 30th of June 2006. This will ensure that a full summer of trading is taken into account and that a sufficient time has elapsed prior to the lodgment of any further modification application for the making permanent of these hours under the new management. It would not be appropriate for Mr Cooke and those associated with him to lodge a further modification application prior to the end of March 2006.

66 Although I have earlier concluded that the provisions of cl 2.3 of the trading hours policy are not germane to this appeal, they will, nonetheless be relevant to any s 96 application to extend the trial of or permanently confirm the hours permitted as a consequence of this decision.

Orders

67 The orders of the Court, therefore, are:

The appeal is upheld;

Development Application D/2004/01684 for extended trading hours for a nightclub in the La Bohem Hotel at 477 Pitt Street, Sydney is determined by the granting of development consent subject to the conditions in Annexure A;

Costs are reserved; and

The exhibits, other than Exhibits F and G, are returned.

Directions

68 I therefore direct:

The applicant is to file and serve, by the close of business on 17 November 2005, a revised plan of management reflecting the matters dealt with during the hearing;

The respondent is to file and serve, by the close of business on 17 November 2005, revised conditions of consent reflecting this decision;

Liberty to relist at 9 a.m. before Moore C, on two days notice, if any matters in the conditions of consent or plan of management remain in contention;

The matter is set down callover before the Registrar on 29 November 2005; and

Orders will be issued in chambers and the callover vacated if the conditions of consent and plan of management are settled between the parties and filed, electronically, in accordance with Practice Direction 2 of 2005, prior to 28 November 2005.

Tim Moore
Commissioner of the Court

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Citations

Legman Pty Limited v Council of the City of Sydney [2005] NSWLEC 640

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CITATION:	Legman Pty Limited v Council of the City of Sydney [2005] NSWLEC 640
PARTIES:	APPLICANT Legman Pty Limited RESPONDENT Council of the City of Sydney
FILE NUMBER(S):	10779 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application :- Nightclub Hours of trading Consent conditional on sale of business .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Central Sydney Local Environmental Plan 1996 Central Sydney Development Control Plan 1996 .
CASES CITED:	Vinson v Randwick Council [2005] NSWLEC 142; Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277; Newbury District Council v Secretary of State for the Environment [1981] AC 578; .
DATES OF HEARING:	4 October 2005
DATE OF JUDGMENT:	11/11/2005
LEGAL REPRESENTATIVES:	APPLICANT Mr S Austin QC INSTRUCTED BY Phillips Fox RESPONDENT Mr P Clay, barrister INSTRUCTED BY Maddocks