Revilla Pty Ltd v Sydney City Council

[2005] NSWLEC 687

Land and Environment Court

of New South Wales

CITATION:

Revilla Pty Ltd v Sydney City Council [2005] NSWLEC 687

PARTIES:

APPLICANT
Revilla Pty Ltd

RESPONDENT
Sydney City Council

FILE NUMBER(S):

10537 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Consent :- Place of public entertainment - trading hours

LEGISLATION CITED:

Local Government Act 1993
City of Sydney Local Environmental Plan 1996

DATES OF HEARING:

15/11/2005

EX TEMPORE JUDGMENT DATE:

11/15/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr P McEwen, SC
Instructed by:
Mr M Bagley, solicitor
Of: Thurlow Fisher

RESPONDENT
Ms J Jagot, barrister
Instructed by:
Mr M Kelly, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

15 November 2005

No. 10537 of 2004 Revilla Pty Ltd v
Sydney City Council


JUDGMENT

This decision was given extemporaneously and has been revised and edited prior to publication.

1 On 16 and 17 March 2005 the Court heard an appeal involving an application under ss 68 and 75 of the Local Government Act 1993 for the use of Levels 1 and 2 in the licensed hotel known as the Pavilion Tavern at 568-580 George Street, Sydney, as a place of public entertainment.

2 On 17 March 2005 orders were issued upholding the appeal and granting approval subject to a number of conditions including Condition 15 that provides:

“(a) Entertainment shall only be offered between the hours of 8 am and midnight on Mondays to Sundays inclusive.

(b) Notwithstanding (a) above, entertainment may operate between 12 midnight and 2 am the following day seven days a week for a trial period of one year from the commencement of operation of this approval.”

3 On 8 August 2005 consent orders were filed in the Court to set aside the abovementioned orders and facilitate the re-opening of the issue of the abovementioned Condition 15 in Annexure A of the orders. The Assistant Registrar endorsed these orders on 9 August 2005. I understand that these consent orders have the effect of setting aside the entire approval granted by the Court on 17 March 2005.

4 On behalf of the respondent council Ms Jagot made no submissions and provided no evidence in relation to the approval generally, dealing only with Condition 15 which she says should be re-imposed in accordance with the approval granted on 17 March 2005 and which relevantly permits an entertainment trial period between midnight and 2 am. In essence, she submitted that the council policy document titled “Policy on Trading Hours for New and Existing Premises” has been consistently applied and supports the 2 am trial period.

5 On behalf of the applicant Mr McEwen submitted that the approval should be re-issued with the following amendment to Condition 15:

“(a) Entertainment shall only be offered between the hours of 8 am and midnight on Mondays to Saturdays inclusive.
(b) Notwithstanding (a) above, entertainment may operate between 12 midnight and 8 am the following day seven days a week for a trial period of one year from the commencement of operation of this approval.
(c) A further application can be made for council’s consideration to modify this approval to allow a continuation of the trial period referred to in (b) above. Such consideration will be based, inter alia, on the performance of the operator in relation to compliance with the conditions of his approval, any complaints received and any views expressed by the police.”

6 In support of the applicant’s position expert town planning evidence was provided by Mr D Brindle. In support of the respondent’s position expert town planning evidence was provided by Mr M Solomon. The two town planners also provided a joint expert’s report for the assistance of the Court. In that report they agreed that:

(1) there was no public consultation, notification or exhibition prior to the adoption of the policy which was adopted by council on 27 August 2001.
(2) the purpose of the policy is to facilitate the regulation of trading hours and to apply on a trial basis hours of operation beyond the standard hours of 8 am to 12 midnight seven days a week.
(3) the application of the policy is intended for the consideration of development applications and the policy does not refer to applications for approval of a place of public entertainment under s 68 of the Local Government Act .
(4) the premises currently has hours that allow it to trade twenty-four hours seven days a week and the abovementioned Court’s approval of a place of public entertainment licence.

7 They also agreed that development consents have been granted by council for trading hours beyond 2 am in circumstances where previous consents have allowed trading beyond 2 am. Despite this, Mr Solomon emphasised that such consents were granted largely in circumstances where premises have demonstrated managerial and operational responsibility.

8 Mr Brindle was of the opinion that development consents have been granted for extended trading hours beyond 2 am when trading hours extended beyond 2 am prior to the policy being introduced. Mr Solomon agreed with this. However, in this regard he explained that council has also given due consideration to the responsibility and experience of the current management to implement operational policies and procedures to ensure public safety and amenity, particularly where those hours extend beyond 2 am.

9 Ms Jagot also stressed that the matter of managerial and operational responsibility is an important consideration in the case. The management question was dealt with at pars 21, 22 and 23 of the judgment dated 17 March 2005. At par 23 I concluded that taking into account the concerns expressed by the respondent I had not been persuaded that these were sufficient to reject the application. I continue to be of this opinion, taking also into account the proposed extended trial period to 8 am.

10 Section 2.2 of the policy provides that licensed premises in the City Centre Zone under City of Sydney Local Environmental Plan 1996 shall be permitted to trade during standard hours of 8 am to midnight seven days a week plus a one year trial period of 8 am to 2 am seven days a week.

11 Following the hearing the experts provided me with a map and a table, (Exhibit L), that provides information regarding a number of licensed premises and premises having public entertainment licenses. A cursory examination of those documents leads me to believe that within about 300 m of the site there are a number of premises having such approvals with operating hours consistent with the respondent’s proposed Condition 15 which is, of course, consistent with the policy.

12 There are also a number of premises that have extended operating hours including trial periods, some extended until 3 am, some extending for effectively twenty-four hours a day.

13 In my view the information provided in the table indicates a significant consistency of application of the policy but the approval of premises having further extended operating hours, whether approved before or after the introduction of the policy, indicates to me that the policy may not always need to be strictly applied. In other words, the particular circumstances of each case can be taken into consideration.

14 In this case the existence of licensed premises and premises with entertainment licences that operate with hours beyond s 2.4 of the policy is a relevant factor to be taken into consideration.

15 There was much argument as to the weight that should be given to the policy. Section 1.1 provides that the policy is concerned with the extension of hours for late trading/twenty four hour pubs and like uses which may have detrimental effects on the neighbourhood.

16 More particularly, it applies to “development applications” involving applications for new uses, applications for extension or renewal of hours of operation and applications for refurbishment of existing uses. On this basis, given that a development application is not involved here, one would expect that the policy would not apply. However, as a policy document, admittedly poorly drafted, I am satisfied that in principle it should be applied although it must attract significantly less weight than a code that has been prepared following proper public consultation. Moreover, as Mr Brindle explained, when the policy was prepared little research was done into the need for or effectiveness of the controls proposed, nor has there been any review of the policy since and no attempt to incorporate its provisions into a planning instrument.

17 In s 2.3 the policy deals particularly with place of public entertainment requirements. Indeed, this section is solely concerned with noise impacts when an extension of hours is sought and that, in effect, is what is being sought in this application. I heard no evidence to suggest that noise would be a problem for either the 2 am trial period or the 8 am trial period.

18 More generally on a merits basis I was advised by Ms Jagot that the principle of ecologically sustainable development should be taken into account. However, neither Mr Solomon nor Mr Brindle raised this as a matter of concern and I cannot understand how it would presently arise. Indeed, in considering the merits of this application more generally I note that neither of the experts raised any concerns.

19 Conversely, Mr Brindle explained how this was an appropriate location for late night entertainment and that there was a strong demand for such venues operating between midnight and the early hours of the morning. He also pointed out that this entertainment precinct is highly accessible by public transport and that increased security surveillance and a co-ordinated approach to public safety has been developed including the CBD Licensing Accord.

20 In my previous judgment I concluded that the proposed Condition 15 should be imposed being consistent with the policy and having given significant weight to it. Having reviewed this aspect of the place of public entertainment approval and giving what I now consider to be the appropriate reduced weight to the policy I have decided that the extended trial sought by the applicant should be granted.

21 In reaching this conclusion I have taken into account the absence of any evidence to suggest that there would be any external impacts beyond the premises that would be different to those that might result from the earlier time when entertainment must cease. Indeed, I am satisfied that the proposal, particularly the increased operating hours, would not adversely affect public safety or the amenity of the neighbourhood.

22 I also note and take into account the fact that the premises have an existing development consent for twenty four hour operation as well as a liquor licence.

23 Finally, I also take into account the fact that the proposed condition only allows entertainment to occur between midnight and 8 am for a trial period of one year. If the performance of management is unsatisfactory and conditions of the approval are not met and if complaints are received and concerns expressed by the police any subsequent approval must be at risk. It is in management’s hands to ensure that this does not occur.

24 The orders of the Court will therefore be:

1 The appeal is upheld.
2 Approval is granted under s 94 of the Local Government Act 1993 for the use of the premises at levels 1 and 2 of the licensed hotel known as the Pavilion Tavern at 568-580 George Street, Sydney, as a place of public entertainment subject to the conditions in Annexure A hereto.
3 Exhibit H is retained.

` ____________

T A Bly

Commissioner of the Court
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