Revilla Pty Ltd v Sydney City Council
[2003] NSWLEC 369
•12/24/2003
>
Land and Environment Court
of New South Wales
CITATION: Revilla Pty Ltd v Sydney City Council [2003] NSWLEC 369 PARTIES: APPLICANT
RESPONDENT
Revilla Pty Ltd
Sydney City CouncilFILE NUMBER(S): 11232 of 2003 CORAM: Bly C KEY ISSUES: :- Place of public entertainment approval - refusal to renew - fire safety and people capacity non-compliance LEGISLATION CITED: Local Government Act 1993; s 107(1), 176 CASES CITED: DATES OF HEARING: 22, 23 December 2003 DATE OF JUDGMENT:
12/24/2003LEGAL REPRESENTATIVES:
APPLICANT
Mr S B Austin QC
With Mr A Hatzis
SOLICITORS
Thurlow FisherRESPONDENT
Mrs J C Kelly, barrister
SOLICITORS
Sydney City Council
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
11232 of 2003
24 December 2003Bly C
- Applicant
- Respondent
Introduction
1 On 3rd January 2002 the Sydney City Council issued a place of public entertainment approval ("the approval") for the licensed premises known as the Pavilion Tavern ("the tavern") at 580 George Street Sydney. The tavern extends over two floors and the approval indicates a maximum capacity (people) of 140 persons for the ground floor and 200 persons for the first floor.
2 The approval was for the period 19th August, 2001 to 19th August 2003 and was subject to five conditions as follows:
- 1. The method of checking the number of persons permitted in the public entertainment area on the approved premises is by:
- A door man employed at each level to control entry and regulate the numbers to be in accordance with the licensed capacity and supplemented by a head count conducted by the licensee.
3. The sound generated by the entertainment shall be controlled so that any emitted noise is not audible in any premises and is at such a level so as not to create an "offensive noise" as defined in the Protection of the Environment Operations Act 1997.
4. The essential fire safety measures shall be maintained to the relevant Australian building codes and standards in accordance with clause 80GF of the Environmental Planning and Assessment Regulation 1993.
5. The provisions of Schedule 1 of the Local Government (Approvals) Regulation 1993 shall be complied with at all times.
3 On 14th August, 2003 and the council wrote to the licensee of the tavern advising that the approval was due for renewal, inviting the payment of an attached invoice and the submission of plans of the entertainment area for assessment.
4 The sought amount was paid on the 15th August 2003.
5 On 7th October 2003 the council determined not to renew the place of public entertainment approval under section 107 (1) of the Local Government Act 1993 simply because it is not satisfied that there is good cause for doing so. The decision was to take effect from 19th October 2003 at which time the provision of entertainment within the premises shall cease.
The issues6 The Class 1 appeal pursuant to s176 of the Act was filed in the Court on 10th October 2003.
7 On 10th November 2003 the council filed a statement of issues containing six separate issues. On 16th November, 2003 Justice Lloyd considered an application to strike out a number of these issues and agreed to do so. The remaining issues are as follows:
- 1. Under s 107 (1) of the Local Government Act 1993, the approval should only be renewed if there is good cause to do so. There is no reason or insufficient reason to be so satisfied.
4. Failure to properly manage the premises whilst public entertainment is being offered is established by:
- (b) Evidence of breaches of conditions of the approval, including breaches for excessive numbers of patrons and failure to properly maintain fire safety measures
(c) Evidence of failure to comply with BCA requirements regarding fire safety
(g) Evidence of poor management of security, including management of crowd numbers.
8 Clause 107 (1) of the Act provides that:
- (1) The council may determine to extend or renew an approval (but without changing the terms of the approval) if satisfied there is good cause for doing so.
9 Mr Austin submitted that there was a good cause for granting the renewal as sought on the basis of the unchallenged provision of facilities for the enjoyment of the public. However, the evidence presented by Miss Kelly in support of council's position was to the effect that council can have no confidence in the owners and managers of the tavern to ensure safety measure controls are met in terms of fire safety provisions and crowd numbers.
Fire safety aspects
10 Leaving aside crowd numbers, the physical aspects of the Building Code of Australia fire safety requirements has now been resolved to my satisfaction following the completion of necessary works and other matters identified in the report of Mr S. Sarantzouklis, a council building regulatory officer. Despite this and whilst the licensee dealt with these matters promptly, taking into account the requirements of condition 4 of the approval which requires the maintenance of essential fire safety measures, one would have expected that with due diligence these concerns would not have arisen.
11 The remaining issue essentially involves the question of whether poor management of the tavern has resulted in non-compliances with the 200 person limit for the first floor as conditioned by the place of public entertainment approval. It is to be recognised that, as distinct from the building type requirements, this limit as well as the total building capacity of 340 people is also a fire safety standard and attracts a particularly high significance as such.
Patron numbers - the evidence
12 Mr G Lim, a council building regulatory and compliance officer conducted an inspection of the tavern on 14th December, 2002. Using a hand-held clicker (a form of counting device) he counted 70 persons on the lower floor and 240 persons on the upper floor. He also inquired of a security officer who had been using hand-held clickers as to how many people were on the upper floor and was eventually told that there were 180 persons on that floor. He then pointed out that based upon his own population counts in these premises on several previous occasions the number of people appeared to be more than 180 persons, in effect confirming his actual count. Management subsequently agreed to reduce the number of persons on the upper floor.
13 Mr Lim also pointed out that he had been advised that the total number of people in the tavern was 200 and that this was significantly inconsistent with his count of 240 persons on the upper floor and a separate count of 70 persons on the lower floor. Moreover if the total figure of 200 persons and the figure of 180 persons on the upper floor were correct this would mean that there were only 20 people on the ground floor compared to his separate count of 70 people.
14 On the 29th March, 2003 Mr Sarantzouklis, together with Mr Lim carried out a further inspection of the tavern, Mr Sarantzouklis counted 215 persons on the upper floor. According to his evidence the manager on duty in a separate count recorded approximately 200 persons. Prior to this the security guard told him, based upon his hand held clickers that there were 140 people on the upper floor, notwithstanding that a more careful examination of the numbers shown on the clickers revealed that the figure was 190 persons.
15 In response to these matters Miss M Franklin, the licensee of the tavern explained that in relation to Mr Lim's visit on 14th December 2002 she examined video footage recorded on the hard drive of the tavern's digital monitoring surveillance equipment for that night and made a count of patrons entering and leaving the upper level. According to her analysis there was a maximum of 179 persons on this level of the tavern just after 11pm. Following this she unsuccessfully attempted to transfer the camera footage for this evening to a compact disc. In this regard Mr R Moynihan of Summit Security and Electrics advised by letter that:
In reference to your request for camera footage to be burnt to CD for Saturday 14/12/2002. As stated previously the GV800 DVR unit was experiencing shutdown malfunctions during this time and consequently camera footage for this day and surrounding days was not recorded to the hard drives. The problem with the GV800 DVR was rectified, and over the last 12 months numerous visits to the site have been conducted to check the operation of the unit.
16 Mr Moynihan was not available for cross-examination however Mr M Mahoney a computer operations manager who is responsible for the operation of the closed circuit TV recording and monitoring system at the tavern did come to the Court to give evidence. He confirmed that the DVR had been malfunctioning and was replaced.
Court's Conclusions17 Miss Franklin also examined video footage recorded on 28th March 2003 and was able to transfer this data to a compact disc. Some of this footage was inspected during the site inspection on 22nd December 2003. More generally she told the Court that she uses her best endeavours to ensure compliance with all conditions of the approval including requiring duty managers to conduct a head count every 30 minutes.
18 Apart from the concerns in relation to capacity (people), fire safety measures as referred to in condition 4 and possibly the occasional absence of a door man at each level (as observed when viewing the video) and as required by condition 1, it appears that the conditions of the approval have otherwise been met.
19 Whilst the people counts carried out by the two council inspectors were disputed by the tavern's security officers, duty managers and Miss Franklin, on balance I accept that the council inspectors counts are likely to be more correct.
20 Reviewing the detailed evidence of Mr Lim and Mr Sarantzouklis including their interviews with the security guards, I have been persuaded that even though the counts carried out by these guards were based on industry practice, these are likely to be unreliable. This is because I accept that the actual counts carried out by the council inspectors, given their experience in carrying out such counts at this tavern and elsewhere and the methods which they utilised, are likely to be closer to reality. The significant differences between the counts and the uncertainties of the security guards when questioned by the council inspectors tends to reinforce this conclusion.
21 Similarly whilst I accept that Miss Franklin is likely to be skilled at counting numbers of people off video camera footage, having seen for myself such footage it is clear that it would be difficult to get an accurate count given the nature and quality and time gaps between such images. In addition and in relation to the counts for 14th December 2002, based on the advice of Mr Moynihan it seems that there was no recorded video camera footage for this day.
22 In the circumstances I have been persuaded that on two occasions the capacity (people) of the Pavilion Tavern has been exceeded and that the condition of the premises in terms of BCA fire safety requirements has, in the recent past, been unsatisfactory. Fire safety in public premises is a matter of considerable importance.
23 Had the capacity requirement not been related to fire safety and given that the BCA requirements have been promptly resolved I may have been persuaded to renew the approval. However the non-compliances with the BCA requirements and the exceedances of the capacity are indicative of management deficiencies and until such time as the consent authority can be assured that these deficiencies have, on an ongoing basis, been corrected, public interest would require that the place of public entertainment approval in its present form should not be granted.
24 Despite this conclusion I have not been persuaded that the premises are not capable of providing public entertainment and complying with all necessary conditions. In such circumstances and if I had the power, and I accept that I do not have such power under s 107 (1) of the Act and if appropriate, more detailed conditions involving management and reporting could have been provided, I would have considered granting the renewal as sought.
Orders
25 The orders of the Court are:
- 1. The appeal is dismissed.
2. The application for the renewal of the place of public entertainment approval for the Pavilion Tavern at 580 George Street, Sydney, is refused
3. The exhibits are returned.
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