Pschorr (Sydney) Pty Limited v Council of the City of Sydney

[2006] NSWLEC 609

Land and Environment Court

of New South Wales

CITATION:	Pschorr (Sydney) Pty Limited v Council of the City of Sydney [2006] NSWLEC 609
PARTIES:	APPLICANT Pschorr (Sydney) Pty Limited RESPONDENT Council of the City of Sydney
FILE NUMBER(S):	10708 of 2006
CORAM:	Moore C
KEY ISSUES:	Development Application :- Licensed premises Noise Impact of departing patrons .
CASES CITED:	Vinson v Randwick Council [2005] 141 LGERA 27, NSWLEC 142
DATES OF HEARING:	21 and 22 September 2006
DATE OF JUDGMENT:	09/27/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr F Corsaro SC INSTRUCTED BY Pike Pike & Fenwick RESPONDENT Mr S Kondilios, solicitor Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

27 September 2006

10708 of 2006 Pschorr (Sydney) Pty Limited v Council of the City of Sydney

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal by the Council of the City of Sydney (the council) of Development Application D/20061775 (the application).

2. The application is now made by Pschorr (Sydney) Pty Limited. It seeks approval for the fitout of former Bond Store 7 at Hickson Road, Walsh Bay (the premises) for a new restaurant/bar.

The locality

3. Bond Store 7 forms part of a single structure known as Bond Stores 5 – 7. This group of bond stores is a state-listed heritage building.

4. Walsh Bay is a former port operations area to the northwest of the Sydney CBD and west along the harbour foreshore from The Rocks precinct.

5. Walsh Bay adjoins the Millers Point/Dawes Point residential neighbourhood. Walsh Bay is being redeveloped as a mixed-use area with an emphasis on the conservation of the historical portside character. The historic bond stores and the finger wharves are being adaptively re-used under conservation guidelines.

6. The Walsh Bay redevelopment is enabled by State Regional Environment Plan 16 - Walsh Bay (SREP 16). This policy contains aims and objectives to protect the cultural and heritage values of Walsh Bay while allowing adaptive reuse of the existing sites and buildings not required for port activities. SREP 16 has been given effect principally through the Walsh Bay Master Plan.

7. SREP 16 permits use of the premises for retail/showroom purposes. Retail/showroom purposes includes cafes and restaurants. The proposal is, therefore, permissible with consent.

The premises and their context in the locality

8. The premises are a former ground floor storage space for port activities.

9. The premises comprise a single rectangular concrete lined space of approximately 50 m by 14.4 m. It has an area of ~ 720 sqm. The premises have a ceiling height of 4 m at the eastern end rising to 5.8 m at the western end. The proposal envisages the construction of a mezzanine floor at the western end to provide an office, plant room and toilet facilities.

10. The footpath adjacent to the road outside the premises is ~ 6.6 m wide. The proposed area for outside patron seating would leave a path of ~ 2m for pedestrians.

11. A section of Pottinger Street and a number of dwellings in a complex known as the Pottinger Street Apartments are directly above the premises. The Pottinger Street Apartments are above the southern side of the premises.

12. The Shore Apartments at 17 Hickson Road are diagonally to the north-west across Hickson Road from the premises. The nearest corner of this building to the premises is at a distance of ~ 30m. 15 Hickson Road is directly opposite the premises. It is the base for the Sydney Theatre Company and has no residential component.

13. Bond Stores 5 and 6 adjoin the premises to the west. They have been redeveloped for ground level retail uses. They also include car parking in part of the rear of the ground level – this has an access through the south-western corner of the premises. This access will be isolated as part of the proposal. They have commercial uses above ground level.

The proposal

14. The application seeks approval for a carrying capacity of the restaurant/bar of 640 people. This number comprises 455 patrons within the premises, 160 patrons seated at tables on the footpath outside and 25 staff.

15. The fitout of the premises is proposed to have a traditional German themed decor. Food and beer will be served. Live entertainment consistent with this theme is proposed.

16. In the Operational Management and Security Management Plan [amended version 1.1 – the third version tendered during the proceedings] (the plan of management), at 10.3, the proposed entertainment is described in the following terms:

The musical offering at Pschorr will be quite unique among hospitality venues in Sydney; and it will offer a great variety. Much of the traditional music played in such establishments in Germany is rich in compositions from the great classical composers, both old and new, such as Johann Strauss, Franz Schubert, Frederic Chopin, Dmitri Shostakovich, and even Georges Bizet. In Pschorr, patrons will hear waltzes, marches, polkas, etc. from such composers. But these will only be part of a very wide range of music, covering the spectrum from the best German folk music to jazz, as made famous by James Last, up to contemporary, popular, German and European hit songs, as well as those with English lyrics.

17. The proposed operating hours of the premises are:

Days	Open	Close
Within the premises
Monday to Thursday	0700	0100
Friday and Saturday	0700	0300
Sunday	0700	2300
Outside seating
Monday to Sunday	0700	2300

Site inspection

18. I inspected the premises on the morning of 21 September with the legal representatives of the parties and their expert advisors. Mr Atkins, the court-appointed noise expert, was also present.

19. During the course of the inspection, I heard evidence from a number of resident objectors. I also heard evidence from a number of people involved in commercial operations in the vicinity of the premises. These people gave evidence in support of the proposal on the basis that it was desirable, in their opinion, to attract people into the locality.

20. I also heard evidence from Mr Gellibrand, the precinct manager of the Walsh Bay Redevelopment Project. His evidence was in support of the proposal. He also gave evidence about representations being made to the State government for the reinstatement of a State transit bus service along Hickson Road. He expressed confidence that, if there was a significant increase in patronage of commercial premises in the precinct, the State government would reinstate this bus service which had recently ceased operating.

21. Mr Kondilios, solicitor for the council, tendered a copy of a consent which had been granted by the council for a number of smaller and less intensive uses of the premises. This consent had been granted in the recent past. As I understood what was being put with respect to this consent, it was that an alternative path to having attractions to bring extra people into the precinct had already been made available by the council.

22. Whilst this might reflect the position if that consent were to be taken up, I am satisfied that that does not provide any basis upon which I could found any criticism of the present application. Whilst the taking up of such a consent might well be of comfort to the supporters who gave evidence to me, it is not a matter to which I can properly have regard, in my view.

The council’s issues

23. Although the council raised a number of issues in the Statement of Issues, in effect, those which require to be considered and are potentially determinative in these proceedings relate to the impact of operation of the premises on nearby residences.

24. These impacts are appropriate to be considered in three separate categories. The first is noise and vibration generated from the internal activities of the premises; the second is the noise generated by the proposed outside patron seating; the third is the potential impact on surrounding residences of patrons departing the premises either after the cessation of use of the outside patron seating or the closure of the premises for the evening.

Internal noise and vibration

25. The applicant proposes to operate the premises on a Drink-or-Dine basis. This will permit up to 30% of the permitted number of patrons to consume drinks without being obliged to partake of a meal. The control of numbers is proposed to be undertaken using an identification scheme based on coaster colours for "drink only" patrons.

26. There will be no bar service with all patrons being served by staff at the tables to which the patrons are assigned.

27. The entertainment will be provided from a designated area towards the east central section of the premises.

28. Patrons wishing to access the toilet facilities will go up a stairway to the mezzanine floor.

29. The noise concerns raised by Mr Atkins concerning the internal operations proposed at the premises relate to two separate matters. The first is the question of direct noise transmission and the second is the possibility of regenerated noise being caused by transmission of vibration through the elemental structures of the premises to the residences located above.

30. With respect to the first issue, it was Mr Atkins evidence that, provided the three sets of doors accessing the premises were left open until 11 p.m. and were closed thereafter, there would be no adverse noise impact at the residences at 17 Hickson Road or at Pottinger Street.

31. It was his opinion that, after 11 p.m. and the cessation outside trading, it would be necessary for all three entrances to be closed and for a sound lock to be installed to the centre door (which would be used as the sole entrance after this time). In addition to the sound lock, noise isolating switches would be needed to be fitted to any amplification or loudspeaker system being used inside the premises. If these measures were implemented, it was Mr Atkins evidence that there would be no adverse noise impact that the residences at 17 Hickson Road or at Pottinger Street from trading after 11 p.m. inside the premises.

32. Although Mr Corsaro SC, counsel for the applicant, opposed these measures being prescribed, I am satisfied on the basis of Mr Atkins evidence, that they would have been required to permit trading after 11 p.m. within the premises, if the Liquor Administration Board noise criteria were to be satisfied.

33. With respect to the second of these issues, leave was granted to the applicant to call Mr Cook, a structural engineer, to give evidence about the way the premises linked, structurally, with the residences and road way above. He provided details of the structural design of the Pottinger Street Terraces.

34. Although Mr Atkins expressed concern at lack of detail about what was to be constructed, in summary, his evidence was that it was possible to develop engineering solutions which would ensure that the transmission of either type of noise to the residences above was constrained so as to satisfy the standard Liquor Administration Board criteria in this regard.

35. As a consequence, I am satisfied that, the applicant having agreed to conditions which would impose those criteria and which embodied testing without notice and at the applicant's expense to ensure that those criteria that were being satisfied, there would be no basis arising out of transmitted noise or vibration to the residences above which would warrant refusal of the application.

Patrons using the proposed external seating

36. The applicant proposes that there be seating for 160 patrons, at tables ranging from 2 to 12 patrons, along the front windows of the premises. These tables would be of a folding variety with attached seating. They would be folded by the staff and put away, each evening, prior to 11 p.m., in a store room at the rear of the premises underneath the mezzanine floor. Last drinks would be called for these outside seated patrons at 10:30 p.m.

37. It was Mr Atkins evidence that there would be a significant exceedance of the Liquor Administration Board's noise criteria at the boundaries of two residences at 17 Hickson Rd.

38. Applying a "rule of thumb" that there would be a reduction of 3 dB for each successive halving of the number of patrons seated in this area and making an allowance for some noise being emitted from the interior of the premises through the open doorways, it was Mr Atkins evidence that it might be acceptable for somewhere between 10 and 20 patrons to be permitted to be seated outside whilst still achieving compliance with the liquor administration boards criteria at the residences at 17 Hickson Rd.

39. Mr Corsaro, in response to this evidence, submitted that the appropriate course to take was to impose a condition reflecting the Liquor Administration Board criteria with the applicant taking the consequences if those standards were breached.

40. Had this been the only matter of significant concern, I would have been prepared to deal with this issue in a form which would have involved a self executing condition that would have effected the cessation of permission to trade at the outside areas if these noise criteria were breached during testing as part of the unannounced testing regime to which I earlier adverted.

Departing patrons

41. As earlier noted, the premises are located where there is no ready access to public transport. Although Mr Gellibrand expressed confidence that commencement of the proposed trading of the premises would hasten a return of the provision of government bus services along Hickson Road, I do not have any concrete evidence that this would be the position. Even if I were to conclude on the basis of his evidence alone that there was some realistic probability, at some future time, that such bus services might be reinstated, it would be inappropriate for me not to consider and determine this application on the impacts which are likely to arise immediately the premises were to commence to trade and what measures are proposed by the applicant in response to and dealing with those impacts.

42. Although the first version of the plan of management proposed that the premises would operate a shuttle bus service to transport patrons away from the premises to various destinations around the Sydney CBD, this proposal was abandoned in later versions of the plan of management when Mr Atkins gave evidence that he had significant concerns about the noise impacts of the operations of such a bus – particularly in respect to the congregation of potential passengers and possible noise impacts of future speed humps which may be installed on Hickson Road.

43. The final version of the plan of management reserved the right to consider the establishment of such a shuttle bus service at some indeterminate future date after consultation with relevant parties – including the council and local residents. As a consequence of the evidence of Mr Atkins and this deferral of consideration of the establishment of such a shuttle bus service, I am satisfied that I should have no regard to the possibility of such a service being introduced.

44. Thus, patrons leaving the premises will be obliged to do so by taxi; on foot; or by private motor vehicle parked nearby.

45. With respect to the taxi option, the applicant proposes to offer a free booking service to patrons of the premises.

46. With respect to the possibility of patrons leaving the premises using private motor vehicles which have been parked nearby, it was obvious from the view that there is extremely limited parking in Hickson Road and that such parking could not make a significant contribution to absorbing the numbers of departing patrons possible if the application were to be approved.

47. It is obvious that a significant proportion of patrons leaving the premises either at an 11 p.m. closure of the outside seating or at the relevant later and of interior operation of the premises will necessarily depart on foot.

48. Those leaving on foot will have, essentially, four choices of route by which to do so. These are:

• to the east along Hickson Road towards The Rocks;
• via one of several sets of stairs to Pottinger St thence to the southeast toward The Rocks;
• similarly via the stairs thence to the southwest toward King Street Wharf and the Darling Harbour precinct; or
• to the west along Hickson Road toward King Street Wharf and the Darling Harbour precinct.

49. At least the second to fourth of these options, if taken by departing pedestrian patrons, will take those patrons passing in close proximity to residential premises.

50. In Vinson v Randwick Council [2005] 141 LGERA 27, NSWLEC 142, I set out 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. The five broad questions to be addressed in those circumstances 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?

51. I also set out, in Vinson, for each question, a range of matters relevant to its consideration.

52. From the first of those questions, relevantly for the present proposal, I note the applicability of the caution that the objectors’ fears of adverse impacts, no matter how genuinely felt, are relevant only to the extent that there is a reasonable probability that impacts will occur.

53. I am satisfied that it is appropriate to adapt and apply the second to fourth of those questions to the present application (adaptation being necessary as what is proposed is an entirely new business with no past operational history). The fifth question is, in effect, subsumed in my consideration of the adapted fourth question below.

54. Taking, for convenience when dealing with a new application, the third of the Vinson questions before the second, I am satisfied that there is, now, a well-documented management plan for the premises which would be available to local residents. I am satisfied that the measures that would be put in place by this plan of management to record and respond to complaints made by residents are also appropriate.

55. Although the initial version of the plan of management was entirely inadequate, a subsequent revised version made significant changes which were fined tuned by the third version in evidence. This final version, I am satisfied, traversed the relevant matters as to the adequacy of which I am obliged to reach a conclusion in determining whether or not the applicant should be successful in these proceedings.

56. For the second of the Vinson questions in the context of the present application, the supplementary matters which require to be considered, relating to measures in place to address impacts, are:

• the number and times of engagement of security personnel; and
• designated duties performed by them together with patrolling patterns.

57. The plan of management makes provision for security personnel to operate within and in the vicinity of the premises. It contains two clauses dealing with the numbers of security personnel to be engaged at any one time. The first, the general provision, is contained within clause 8.6 of the plan of management. It reads:

Security personnel will be on duty on occasions as determined by the Licensee, provided that as a minimum:

(a) there will be 1 Security personnel on duty on Thursday Nights from 19:00 until half an hour after closing time;

(b) there will be 2 Security personnel on duty on Friday Nights from 19:00 until half an hour after closing time;

(c) there will be 2 Security personnel on duty on Saturday Nights from 19:00 until half an hour after closing time;

58. This provision requires no adjustment of the number of security personnel engaged if the number of patrons actually on the premises increases.

59. Curiously, a separate provision, in clause 8.7 of the plan of management, contains a sliding scale for the number of security personnel to be engaged if entertainment is being provided at the premises. This provision reads:

Notwithstanding the provisions of clause 8.6, whenever public entertainment is provided after 17:00, there will be:


(a) 1 Security personnel on duty within one hour of the manager becoming aware that there are more than 100 patrons on the premises;

(b) 2 Security personnel on duty within one hour of the manager becoming aware that there are more than 200 patrons on the premises;
(c) 3 Security personnel on duty within one hour of the manager becoming aware that there are more than 300 patrons on the premises.

(d) 4 Security personnel on duty within one hour of the manager becoming aware that there are more than 400 patrons on the premises.

(e) 5 Security personnel on duty within one hour of the manager becoming aware that there are more than 500 patrons on the premises.

60. It is difficult to imagine what might be the nature of any live entertainment [consistent with that set out in (16) above] which would excite the passions of the patrons sufficiently to warrant the increase in numbers of security personnel provided for by clause 8.7 compared to the general operating regime security staff provided for in clause 8.6.

61. The plan of management also sets out what to be the responsibilities of security personnel in Hickson Road precinct in the vicinity of the premises. The relevant paragraphs of clause 8.9 read:

(a) Security personnel outside must encourage all patrons to keep noise levels down, and respect the good order of the neighbourhood.

(b) …………………………….

(c) Security personnel outside should direct patrons to transport opportunities in the area.

(d) Last drinks are called half an hour prior to closing, allowing patrons ample time to depart quietly at their convenience.

(e) Security personnel are expected to be friendly and polite to all patrons - patrons should be greeted on arrival, and assisted when leaving, or if in need of help (e.g. finding toilets).

(f) …………………………….

(g) …………………………….

62. The patrolling activities of security personnel are set out in clause 8.10 which reads:

When there are two or more security persons on duty, the security personnel will maintain surveillance of the periphery of the restaurant and 100 metres up Hickson Road towards Towns Place as well as in the opposite direction to the corner of Hickson Road and Pottinger Street.

63. Clause 8.11 makes it clear that when only one security staff member is on duty, that persons responsibilities only extend to surveillance of the periphery of the restaurant every hour.

64. The activities of security personnel when undertaking these surveillance activities outside or in the vicinity of the premises are set out in clause 8.12 which reads:

Security persons are to approach anyone being unruly, or disturbing the quiet and good order of the neighbourhood, and request that they should leave the area in a quiet and orderly manner. Physical intervention by security personnel is to be avoided at all times. The security personnel are to advise the restaurant by way of their internal communications devices of any disturbances, and, if required, their movements in the course of removing any disturbances from the area. The security personnel are to communicate with management again to advise when the disturbance has been resolved, and to ensure the safety of both patrons and security staff.

65. For the fourth of the Vinson questions, in the present context, it is appropriate to consider what is be likelihood of these security measures successfully addressing any adverse impacts on residents in the vicinity which would be expected to arise.

66. The two operational circumstances under which I must assess the potential impact on residents in the vicinity of the premises involve a maximum of 160 patrons departing between 10:30 p.m. and a little after 11 p.m. at the time of closure of the outside seating area and a maximum of 455 patrons departing later in the evening (depending on the night of the week involved) at or about the scheduled closing time for the interior operation of the premises.

67. In the early hours of a Saturday or Sunday morning, a maximum of 455 patrons could be leaving the premises at between 2:30 a.m. and about 3 a.m.

68. In light of the limited nature of the transport options available for departing patrons, I am satisfied that a significant and large number of departing patrons will not be able to use taxis or private vehicles to leave the premises. Necessarily, therefore, I am satisfied that a significant and large number of departing patrons will need to depart the premises on foot.

69. I am satisfied that the proposed patrolling patterns of security personnel coupled with the numbers engaged, if clause 8.6 of the plan of management is in operation, could not possibly manage and reduce, to what might be considered an acceptable level, any antisocial behaviour occasioned by 160 departing patrons let alone 455 departing patrons.

70. The scope of the patrolling patterns is inadequate to have any impact on antisocial behaviour in the broader impacted residential area.

71. Even if the patrolling patterns were altered to encompass a significantly expanded area, I am satisfied that be general level of security staffing simply could not prevent any unacceptably adverse impact across such a broader area.

72. I have considered whether a combination of adopting clause 8.7 of the plan of management as the universal level of security staffing combined with a broader patrolling area could provide sufficient comfort that there would not be an unacceptably adverse impact across that broader patrolling area.

73. I am not satisfied that this could possibly be the case – at least with respect to 455 departing patrons in the early hours of the morning.

74. As earlier noted, I am satisfied that the significant bulk of such patrons would be departing the area on foot, fanning out along be various exit routes through what would largely, at least in part, be residential areas.

75. Although the stated aspirations of the applicant are that the premises of up family entertainment, it is not reasonable to assume that there would be any predominance of family patronage at the hours of the morning when a maximum of 455 persons could be leaving the premises.

76. I have also considered whether it would be possible for me to determine what would be the appropriate larger number of security personnel who could be required to be on duty in the period immediately prior to and after early morning closure if there were, in fact, some number of patrons approaching the maximum permitted carrying capacity of the premises at those hours. Even if I were to hazard such a calculation, I have no rational basis upon which I could found it.

77. As a consequence, in summary, I am satisfied that:

• The predominant bulk patrons who will be present at the premises at closing time of the internal operations will, necessarily, leave Hickson Road on foot;
• There is no realistic probability of any alternative acceptable transport option being available at the time of or in the immediately foreseeable period after the commencement of trading of the premises;
• At least some of those leaving on foot are likely to act in an antisocial fashion in the surrounding residential areas;
• The present provisions for numbers of security personnel and patrolling patterns for them are inadequate to deal with such unacceptable antisocial impact; and
• I am unable to calculate how many security personnel would be required to provide adequate patrolling to address antisocial behaviour which would arise in the course of up to 455 patrons departing the premises at some time after 2:30 a.m. on Saturday or Sunday mornings or at any earlier evening closure of the internal activities of the premises.

78. Indeed, I have no basis upon which to conclude that it would be realistically possible to undertake such a supervising and controlling operation in the vicinity of the premises for those numbers of departing patrons.

79. It therefore follows that permitting the internal activities of the premises until the closing time as proposed in the application is unacceptable.

80. I have considered whether or not it would be appropriate to grant a consent to the internal trading activities of the premises until some earlier an hour (whether with or without a trial extension until the later hours proposed in the application).

81. I am satisfied that it would not be appropriate to do so because, although the impacts would occur earlier in the evening, nonetheless I am satisfied that they would still be unacceptable at whatever hour they were to occur.

82. Although this conclusion is expressed with respect to the early morning cessation of trading of the internal operations of the premises, broadly similar reservations arise with respect to be cessation of outside trading at 11 p.m. on any trading night.

83. However, I am satisfied that, in this limited regard, the adoption of clause 8.7 staffing levels (or something slightly in excess of them) coupled with a significantly wider patrolling area might have the appropriate effect but I do not have sufficient confidence in this tentative conclusion to adopt it as a basis upon which I might permit this aspect of the proposal.

84. In any event, given the conclusion which I have reached with respect to the antisocial impact of patrons departing after the closure of the internal operations of the premises, I do not need to consider this further.

Conclusion

85. As a consequence, I have concluded that be application suffers from incurable defects and must be refused.

Orders

86. The orders of the Court are, therefore:

1. The appeal is dismissed;
2. Development Application D/20061775 for the fitout of former Bond Store 7 at Hickson Road, Walsh Bay, for a new restaurant/bar is determined by the refusal of development consent; and
3. The exhibits are returned.

Commissioner of the Court