Rifon Pty Ltd v Sydney City Council

[2006] NSWLEC 778

Land and Environment Court

of New South Wales

CITATION:

Rifon Pty Ltd v Sydney City Council [2006] NSWLEC 778

PARTIES:

APPLICANT
Rifon Pty Ltd

RESPONDENT
Sydney City Council

FILE NUMBER(S):

10375 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Alterations and change of use for late night trading of licensed premises; compatibility with zone objectives, consistency with built environmental design controls, amenity/noise, antisocial behaviour, cumulative impacts, public interest

LEGISLATION CITED:

Environmental Planning and Assessment Act
South Sydney Local Environmental Plan 1998

DATES OF HEARING:

12/09/2006, 12-13/10/2006

 
DATE OF JUDGMENT: 

12/13/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr P McEwen, SC
Instructed by: Mr C Drury, solicitor
Of: Phillips Fox

RESPONDENT
Mr P Clay, barrister,
Instructed by: Mr S Kondilios, solicitor
With Ms P Adraskelas, solicitor
Of: Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

13 December 2006

10375 of 2006 Rifon Pty Ltd v Sydney City Council

JUDGMENT

Background

1 This appeal was lodged against council's refusal of a development application for alterations and the change of use of existing commercial premises, which are situated at 23 - 31 Darlinghurst Road, Kings Cross. The change of use is from the former Hungry Jack's restaurant to a licensed restaurant and cocktail lounge, with late night trading until 3 am.

2 For the appeal, a number of issues were identified, which can be summarised as follows:

• compatibility of the proposal with the zone objectives,
• consistency of the proposal with built environment design controls,
• amenity/noise impacts,
• antisocial behaviour/cumulative impacts,
• public interest.

3 The parties agreed to the appointment of Mr L Fletcher as the Court-appointed expert for planning and he prepared an initial detailed assessment, which became exhibit 4. He then prepared supplementary reports (exhibits 12, 17) and participated (Exhibits 12 and 17) and participated in the joint planning conference, resulting in Exhibit 18.

4 The parties also agreed to the appointment of Mr R Heggie as the Court

appointed expert for acoustic issues and his detailed reports are Exhibits 5, 6, 17, 19 and 20 (joint report).

The Site

5 The subject property is described as Lot C, DP 33528 and it has a total area of 536.9 sq m. There is a 2-storey building erected on the land and the proposal is to be located on a "site" in the western section of the building on the ground floor, where the previous use was for a "Hungry Jack's" restaurant, which operated on a 24 hour basis. Other uses within the building include a backpackers hostel on the first and second floor and commercial tenancies adjacent to the subject site on the ground floor.

6 The building is constructed to all site boundaries and the proposal fronts onto Springfield Plaza and Darlinghurst Road.

7 The subject site is currently vacant and it is proposed to retain the existing doors onto Darlinghurst Road and Springfield Plaza, used previously by the Hungry Jack's restaurant.

8 There is an existing roof terrace, which is bound by the backpacker accommodation on the south, east and west and to the north abuts the Village Centre. The windows of the rooms on the eastern side are approximately 1 m from the roof terrace area.

9 The Springfield Plaza frontage is in close proximity to residential development within Springfield Avenue, which contains a series of heritage listed inter-war heritage buildings. These buildings are to the west of the site.

The proposal

10 This proposal involves the following alterations and change of use from the former 24 hour restaurant:

a) Internal and external operations to the existing building, involving a new basement level (levels 1 & 2), additions to the ground floor (level 3) and creation of a mezzanine floor (level 4). The proposal also is for the utilisation of part of the rooftop terrace and includes screening of the air conditioning units.
b) Change of use from a 24-hour fast food restaurant to a licensed restaurant and cocktail lounge/nightclub, with bars on both levels.
c) A Place of Public Entertainment licence for the proposed use.
d) Approval for a restaurant/cocktail lounge, trading on a nightclub licence from 8 pm – 3 am with a dine-or-drink authority attached. The dine-or-drink authority is to allow the allocation of up to 30% of the dining seats for patrons who wish to drink liquor without a meal, while the premises are operating as a restaurant (i.e. before 8 pm).
The operations during the night club/cocktail lounge mode (8 pm to 3 am) involves a light meal being offered at all times as required. No dedicated dance floor is proposed during this mode. Any entertainment is by way of a dedicated disk jockey.

South Sydney Local Environmental Plan 1998 (SSLEP)

11 The subject site is located:

• within a Mixed Uses 10 Zone under SSLEP,
• within a heritage conservation area, and a heritage streetscape under the SSLEP,
• within the Kings Cross Urban Village/Entertainment Precinct, which is characterised by bars, nightclubs, sex industry related premises, cafes and assorted shops and offices, with a number of residential uses located on the upper floors of some buildings. The area contains a cluster of late night trading entertainment uses, including the Empire Hotel which is located on the opposite side of Darlinghurst Road (No. 32 Darlinghurst Road) and the recently approved licensed hotel application for the Westpac Bank building on the opposite side of Springfield Plaza.

12 The proposal is permissible with consent.

13 Clause 10 of the LEP relates to zone objectives and general development controls and states:

• Except as otherwise provided in this plan, the Council must not grant consent to the carrying out of development of land to which this plan applies unless the council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located.

14 Clause 8 of the LEP requires Council in its assessment of a development application to consider the goals and objectives contained in the Strategy for a Sustainable City of South Sydney to the extent that they relate to the proposed development.

15 Clauses 22 to 27 inclusive relate to heritage conservation. The subject site, whilst not a heritage item, forms part of a Streetscape Area (HS4 - Darlinghurst Road), a heritage conservation area (CA19 - Elizabeth Bay Conservation Area) and is located in the vicinity of a number of heritage items.

16 The provisions of these clauses require the consideration of the proposed development in relation to its impact upon the significance of the heritage streetscape area, heritage conservation area and neighbouring heritage items. The proposed development's compliance with the heritage provisions have not been raised as an issue in these proceedings.

17 Clause 28 of the LEP contains provisions relating to built environment design principles and master plans. The proposed development's compliance with sub­clauses 28(d) and 28(h) have been identified as issues in these proceedings as to whether the development:

d) has been designed with adequate provision for the intended occupants, and those in the vicinity of the site of the proposed development, in terms of:
(i) privacy, and
(ii) access to sunlight, and ...
(h) encourages complimentary land uses and activities.

18 Clause 37 of the LEP relates to non-residential development within Zone No 10 and states:

(1) The object of this clause is to promote the objectives of Zone No 10 and to allow buildings or parts of buildings in that zone which are used for residential purposes to be used for mixed use purposes while ensuring that the mixed use does not have an adverse impact on the character of the suburb.

(2) The Council must not grant consent to the use for non-residential purposes of a building or land within Zone No. 10 that was being used for residential purposes on the appointed day (24 April 1998), unless it is satisfied that:

(a) the change of use will not significantly erode the residential character and identify of the locality, and
(b) the change of use will not significantly reduce the level of residential accommodation in the locality, and
(c) the non-residential use on the site will be secondary to the residential use on the site, and
(d) the non-residential use will not have an adverse impact on the amenity of the predominant residential use on the site, and
(e) the proposed development is consistent with the objectives of Zone No. 10.'

South Sydney Development Control Plan 1997: Urban Design (SSDCP)

19 Part B of the DCP contains provisions relating to urban design principles. Relevant sections of this Part of the DCP include Section 2 - Urban Form, Section 3 - Urban Villages, Public Spaces and Pedestrian Networks and Section 4 - Sustainable, Healthy Environment.

20 Part C of the DCP contains provisions relating to the public domain. The relevant sections of this Part of the DCP include Section 3 - Security.

21 Part D of the DCP contains provisions relating to social planning. The relevant sections of this Part of the DCP include Section 2 - Access, Section 5 - Community Infrastructure, Section 6 - Cumulative impacts and Trade-offs and Section 7 - Economic Issues.

22 Part E of the DCP contains design criteria for specific types of developments. The relevant sections of this Part of the DCP that apply to the proposal include Section 1.2 - Site Analysis/Layout, Section 2.2 - Floor Space Ratio, Section 3 - Heritage and Conservation, Section 4.1 - Visual and Acoustic Privacy, Section 4.2 - Safety and Security, Section 4.6 - Fire. Regulations and Section 6 - Operational Controls.

23 The proposed development's compliance with Part B Section 4, Part D Section 6 and Part F Sections 4 and 6 within the DCP have been identified as issues in these proceedings

City of Sydney Access Development Control plan 2004

24 The following council policies were identified as relevant in this matter:

• Strategy for Sustainable City of South Sydney;
• Waste Code for New Developments.

The evidence

25 As I have previously noted, Mr Fletcher undertook a detailed assessment of the planning issues, in his capacity as the Court-appointed planning expert. However, further planning evidence was presented by Mr A Rees, council’s Area Planning Manager, with particular reference to the cumulative impact issue of late night licensed premises in the area.

26 In addition to Mr Heggie’s reports, Mr S Cooper presented a detailed acoustic assessment on behalf of the applicant and after conferencing, these experts produced a joint report in Exhibit 20.

27 A considerable number of objections were lodged against the proposal and a number of residents presented oral evidence detailing their concerns. These concerns relate to the impacts of late night trading, potential noise impacts from the property, noise disturbance from patrons leaving the premises during night time periods, increased traffic and antisocial behaviour in the area. The objectors position is that when due consideration is given to recent developments within Kings Cross, a considerable number of licensed, late-night trading developments have been approved, which is resulting in the degradation of amenity for residents in the nearby apartments.

28 Evidence was also given by Acting Inspector D Whiteway (Licensing Sergeant at Kings Cross), who said he did not support further licensed premises with late night trading in Kings Cross because he considers it has reached saturation point for this type of development.

29 In assessing the proposal, I note that there has been considerable conferencing between the parties and this has resulted in various amendments by the applicant to address the identified issues. Consequently the scope of the issues has been narrowed to predominantly noise and cumulative impacts. Therefore I focus particularly on the final joint expert’s report in the consideration of the various objections and submissions relating to the refusal of the proposal.

30 One of the primary concerns is noise nuisance. Firstly, this relates to noise nuisance within and emanating from activities in the premises. Secondly, it concerns noise disturbance from patrons leaving the premises.

31 With regard to the first aspect, the site is somewhat unusual because it is within a building that contains other uses, including backpacker accommodation (Funk House) above the subject proposal. Mr M Ambler is one of the operators of the Funk House and he expressed the following concerns:

• his business will be jeopardized because the late night trading, with music is likely to create the perception of a noisy location restricting sleep and discourage guests,
• as music/disco is proposed, it is likely the speakers will be placed in the ceiling where they cannot be damaged and the separation ceiling slab of 30 cm will be inadequate to sufficiently mitigate disturbance for people sleeping immediately above these speakers,
• the characterization of the proposal for a restaurant is misrepresented due to the relatively small kitchen and huge bar,
• the backpackers’ rooms will experience excessive vibration on due to the timber floors being located above the concrete slab,
• the proposal is not consistent with the Zone No. 10 objectives requiring a mixture of compatible and supportive land uses.

32 However the acoustic experts have considered this matter on the basis of the current noise amenity controls adopted by the Liquor Administration Board and measurement assessment procedures published by the Department of Environment and Conservation (DEC). Accordingly Mr Cooper undertook background noise level readings to establish "inaudibility goals" for the night-time period after 12 midnight and determined a background sound pressure level of 45 dBA for the Funk House. He says that in order to achieve the appropriate goals at the Funk House, it may be necessary for the received music noise levels to be reduced to levels between 10 dB and 15 dB below the minimum background sound levels in each octave band.

33 Therefore Mr Cooper recommended a range of building acoustical upgrades to achieve this audibility goal and proposed music sound level limits expressed as a maximum sound level in each octave band. This is specified in the following "A - Weighted Octave Band Centre Frequency (dBA - Hz) table.

A-Weighted Octave Band Centre Frequency (dBA – Hz)

31 Hz	63 Hz	125 Hz	250 Hz	500 Hz	1 kHz	2kHz	4kHz	8kHz
35	72	78	82	83	77	80	80	8-

34 Mr Heggie agrees with Mr Cooper's proposals, with the qualification that the typical sound levels of the Cocktail Lounge music levels of 81 dBA to 82 dBA, which are lower than the suggested maximum of 87 dBA, can only be achieved in the absence of any patrons dancing, in his opinion. Otherwise, the building upgrades proposed should result in a margin of safety of approximately 5 dBA. However, he says that the detailed acoustic measures should be subject to review and part of the approval process for the Construction Certificate.

35 The acoustic experts are in agreement that reasonable conditions of consent can be imposed which require internal building upgrading and performance criteria for the sound sources, which should result in compliance with current noise controls. The only point of disagreement concerns Mr Heggie’s preference that there be no dance floor on the premises and I deal with that later in the consideration of draft condition relating to trial periods.

36 With regard to the planning issues, Mr Fletcher has provided an outline of the relevant planning controls, including the zone objectives in his assessment. From this he says that the King's Cross Precinct is a popular and famous nightclub entertainment precinct which is characterized by late night operations catering for both Sydney residents and tourists. The zoning permits a diverse mix of development types. The proposed restaurant/nightclub is a permissible use under the zoning and in his opinion is consistent with the nature of other entertainment related uses in the locality.

37 Mr Fletcher says that:

• the proposal is consistent with the objectives of the zone and the relevant planning principles subject to imposition of, and adherence to appropriate conditions to manage the impact of the activity. In particular, this is on the assumption that acoustic issues can be adequately managed. The Kings Cross precinct is a unique commercial area within the City of Sydney and exhibit a character vastly different from activities in other parts of the city. Kings Cross has for decades formed a key entertainment precinct within the city, providing services to tourists and residents of the broader Sydney region alike.
• The refurbishment of some of the older residential flat buildings and the construction of numerous new residential apartments in and around Kings Cross has understandably led to increased tension between the somewhat conflicting objectives of providing reasonable amenity for residents and promoting entertainment uses, particularly late trading entertainment uses as an essential part of a character history of Kings Cross. In my opinion, expectations of what constitutes reasonable residential amenity must have regard to these circumstances. In my view, the planning instruments deal with this conflict and tension by specifically assigning areas where such activities are appropriate and confining those activities to those areas, together with appropriate controls or conditions to manage their impact.
• It is my opinion that the location is appropriate for the proposed use. With appropriate conditions to manage the impacts, including conditions relating to control of noise and antisocial behaviour, it is my view that the impacts of the proposed development can be appropriately controlled so as to reduce impacts on nearby residential properties to an acceptable level. Again, this is on the assumption that the concerns raised by Mr Heggie in his preliminary advice can be resolved to the satisfaction of the Court.

38 In reaching this conclusion, Mr Fletcher has acknowledged the following provisions of the DCP Design Criteria for Specific Types of development, and confirms his opinion that the proposal satisfies this criteria:

This precinct (the Kings Cross Entertainment Precinct) is part of the Kings Cross Urban Village however, it contains a strong component of entertainment oriented activities which set it apart from other urban villages.

The planning intent for this precinct is to recognise and encourage entertainment uses in the precinct (particularly at lower levels of buildings) whilst containing these uses to the assigned area to protect the amenity of surrounding residential areas.

Whilst activities in the village may be of greater intensity and scale than in other urban villages, they should further Kings Cross true urban village character.

39 The associated issue then concerns the antisocial behaviour/cumulative impacts arising from the proposal. Relevantly, Pt D of the SSDCP relates to Social Planning Design Criteria and provides:

6. CUMULATIVE IMPACTS AND TRADE-OFFS
Objectives
• To manage cumulative impacts arising from development activity and implement strategies to avoid or minimise these.
• To identify negative social impacts of development proposals and develop avoidance, minimisation or mitigation measures to address these.
• To maximise the benefits of development proposals to the local community.
  
  Performance criteria
• Development takes into account cumulative impacts of past develop activity and does not exacerbate existing negative social impacts or issues.

• Development identifies and responds to opportunity to benefit the local community and provides measures to mitigate against negative impacts.

40 For his consideration of this issue, Mr Fletcher referred to other licensed premises in proximity to the subject site that were noted in the council officers DA assessment report. However, he considers it significant that the former Westpac Bank site immediately on the opposite side of Springfield Plaza has recently been granted approval by council for change of use to a "hotel with entertainment". In total, this hotel will accommodate 1450 people at anyone time, compared with the 270 people maximum proposed for the subject restaurant/nightclub. He notes that some of the conditions of consent were appealed and the Court allowed a one-year trial period of operations until 5 am.

41 Notwithstanding this, Mr Fletcher acknowledged that the applicant proposes to deal with antisocial behaviour and cumulative impacts through operational management measures outlined in a Plan of Management (POM), which he considers is adequate to address this issue. This includes the provision of security guards at the entrances to the proposal to direct patrons onto the Darlinghurst Road and also to patrol the surrounding area to minimise disamenity. Accordingly he considers that this provision of security, together with surveillance cameras in the premises and onto Springfield Plaza should improve the security in the locality.

42 However, it is quite apparent from the objections and police evidence that there are fundamental differences on the application of this part of the DCP. Acting lnspector Whiteway said that Kings Cross has:

"as far as licensed premises are concerned, it has reached saturation point. We, as police, are an important community stakeholder in Kings Cross. We have first hand experience with dealing with the enforcement of legislation pertaining to those premises and it is our view that the area, at present, the most densely populated as far as licensed premises per capita of its population in Australia."

43 When asked by Mr Clay, what indicia does he look at to establish this "saturation point?" Acting lnspector Whiteway referred to the following points:

• first hand experience in the area, where he has noticed an obvious increase in workload over the last 4 years, particularly with alcohol-related crime in the area,
• performance indicators for categories of assaults, malicious damage and stealing have, increased,
• problems with increased motor vehicles parking and limited access/exit routes from Kings Cross, particularly when the main reason people come to Kings Cross between 1 am and 5 am is to drink, in his opinion,

• receipt of complaints from residents who advise the police of specific licensed premises where persons causing the nuisance have apparently departed.

44 Insofar as questions about the utility of the proposed private security arrangements in the POM were put to Acting Inspector Whiteway and he expressed some reservations about this method of control, nevertheless he said that:

"Security from my point of view is probably our greatest untapped resource. If we have good security at licensed venues then our problems certainly dissipate a great deal. The problem is finding those people. It is not up to us to employ them, it is the management of the licensed premises who employ their own security ..."

45 In terms of possible initiatives to deal with the antisocial behaviour in the street, after patrons have left the licensed premises, Acting Inspector Whiteway said that this concern had been considered in the Liquor Accord but difficulties experienced with its implementation and funding. He was unaware whether s 94 contributions could be directed towards this matter, so that some co-ordination of private security arrangements could be achieved.

46 Interestingly, the evidence on the cumulative impacts issue referred to the notion of "saturation point", which many of the residents and police said has been reached. However, no substantive evidence was presented regarding the application of the performance criteria, or how appropriate "trade-offs" could be allowed, so as to allow any objective assessment. This is despite many licensed premises being approved in the area over the past 5 years, with some subject to trial periods, which apparently has never resulted in the ultimate refusal of these developments after review of the trial periods, according to Mr Rees. It therefore seems that decisions regarding ongoing developments involving late night trading for licensed premises is made on the basis of experience and intuition.

47 Assuming then that cumulative impact relates to the effect of progressive additional elements (i.e. new developments, number of patrons, etc), it seems to me that this effect is capable of quantification so that anyone interested is able to understand what the ultimate target is. This target could be described as a "saturation point" where progressive additional elements represent full capacity. In this event, presumably some policy changes are envisaged on avoidance and minimisation strategies, together with more explicit trade-off allowance explanation.

48 As none of this information was initially presented to the Court, the Court appointed expert - Mr Fletcher, was requested to provide some additional information, which identified any steps in a process of determining whether there is an identifiable limit to the number of licensed premises in a precinct, and what might constitute a rational basis for the determination of any "saturation point". Arising out of this, apparently no relevant local information was available. However reference was made to a case study of Ealing Town Centre in the United Kingdom, which I briefly deal with later.

49 Mr Fletcher then explained that traditional and logical planning methodology is to limit the extent of development to the capacity of the existing or planned future infrastructure serving that locality. This often involves the measurement of various elements e.g. traffic movements, pedestrian movements, density of development, etc. These results can then be considered in terms of qualitative aspects and should involve input from all interested stakeholders.

50 With regard to the subject proposal, Mr Fletcher says that it is appropriate for consent authorities dealing with DAs to require compliance with an approved Plan of Management and specify conditions controlling noise amenity. However, this land use approval system is not the most appropriate or effective system to deal with problems if they arise. This is for two primary reasons. Firstly, consent authorities have little power to add or amend conditions once consent is granted. Secondly, any DA consent goes to the land and it is not restricted to a particular individual or company. Consequently he prefers the licensing system administered by the Licensing Court, which can amend, restrict or cancel licences if necessary.

51 Mr Ree's evidence contains comprehensive survey and a summary of existing and approved licensed premises in the Kings Cross area and surrounds. It also provides commentary on the survey and complaints related to cumulative impact of late night trading premises in Kings Cross area and associated antisocial behaviour and site suitability. He concludes that:

• The proposed late night trading premises has a maximum capacity on 270 patrons and would draw people from other licensed premises in Darlinghurst Road into Springfield Plaza. Potential impacts are compounded by the service of alcohol and provision of entertainment within close proximity to residential development.
• The proposed late night trading restaurant, bar and nightclub fails to comply with the principles of the South Sydney LEP 1998, is inconsistent with the zone objectives to preserve and enhance the quality of life for residents in the area.

• The proposed late-night trading restaurant, bar and nightclub would exacerbate current antisocial behaviour that is directly link to the intensity of licensed premises in the area, inconsistent with Section 6, Part D of the South Sydney Development Control Plan 1997.

52 These conclusions are diametrically opposed to Mr Fletcher's, who considers that the proposal merits conditional consent. However, Mr Rees does not indicate how he reconciles the competing objectives to encourage entertainment uses in the precinct, whilst protecting the amenity of surrounding residential areas. If late-night trading of licensed premises is to be avoided, or minimised as entertainment uses, appropriate policy decisions can presumably be made by council, after consideration of any linkages between the various venues. But no strategies on avoidance, minimisation or mitigation measures were presented to the Court.

53 In my assessment then, this further information on the "cumulative impact/saturation point" in the Kings Cross entertainment precinct is of limited assistance.

54 For an objective assessment, however, the planners referred to the Ealing Town Centre - Case Study (Study), whose aims were:

• to determine, in the local context, how Ealing might measure ‘cumulative impact' and determine what particular indicators of ‘saturation point' or carrying capacity are meaningful, in terms of managing the negative impacts of the late night economy."

55 The Study defines ‘cumulative' as meaning 'growth in quantity, strength, or effect by successive additions'. In this context it defines 'impact' as 'to have an impact or strong effect on'. It then describes 'cumulative impact' as the 'compounding effect' of a particular phenomena then lists the following statements that may be used to describe the cumulative impact of the addition of multiple, new or extended licensed premises in a particular locality:

• The compounding effect of amenity, crime, nuisance and infrastructure issues associated with multiple licensed premises in a defined catchment area
• An over concentration of licensed premises in a locality.
• Where the cumulative effect of many licensed premises concentrated together causes unacceptable problems of crime, public disorder and nuisance, due to the numbers of people arriving and moving between such venues.
• A saturation of licensed premises that attracts customers to an area to such a degree that has an adverse impact on the surrounding area that is beyond the proper control of individual licence holders and relevant authorities.

• Cumulative impact is the disruption that occurs when conditions have deteriorated to the point where activity in one area of activity is that adversely affected by changes and/or additions to the activity in another area of activity.

56 From these statements, the Study says that the unacceptable cumulative impact of licensed premises can be defined, for the purposes of the Study as:

The concentration of many licensed premises in a defined area and the associated impacts of crime, public disorder and nuisance that are above acceptable levels, and beyond the proper control and management of licensees, police, the local authority and other agencies.

57 It is obvious from the details presented in the subject appeal, that if this definition was adopted, there is insufficient substantive evidence to conclude that the subject development reaches the threshold for unacceptable cumulative impacts. In this regard, I anticipate that the number of s 104 (LAB) complaints could provide an indicator, but this evidence was not produced.

58 Notwithstanding this, the respective planners conferred and prepared a joint statement, Exhibit 18. In it they identified a list of potential data that could be collected and analysed to measure the cumulative social impact of late night trading premises in a given study area. In addition to collecting data for a particular study area, it also would be necessary to collect data from a control area to enable comparisons to the made (for example, data for the whole local government area or whole metropolitan area).

59 Importantly then, the planners say that:

"Once the data is collected, analysis of that data would require the setting of benchmarks for the various indicators to guide the determination of acceptable and unacceptable impacts. The setting of those benchmarks would necessarily involve assumptions and it is our joint opinion that any such assumptions should be explicitly stated and be the subject of extensive public consultation in the formulation of any recommended plans or strategies that flow from the study."

60 Accordingly, the following primary indicators are listed:

Safety and Security:

• Number of incidents in licensed premises,
• Number of incidents in the public domain,
• Number of incidents - assaults (including verbal),
• Number of incidents - malicious damage,
• Number of incidents - disorderly conduct.

Other:

• Number of substantiated noise complaint directly related to licensed premises,
• Number of waste complaints (urination, defecation, broken glass, vomit) directly related to licensed premises.
• Existing number of other licensed commercial uses operating during trading hours in the study area,
• Frequency and scale of special events within or adjacent to the study area.
In the licensed premises:
• Presence/absence of on-site smoking locations,
• Capacity to have Outdoor Dining Footway Licence, Presence/absence of a Place of Public Entertainment Licence, Presence/absence of a Plan of Management for licensed premises (especially ratio of security staff to an approved number of patrons) Mix within premises (number of bars, presence/absence of food service etc).

61 As I have stated previously, there is no substantive evidence which enables an objective assessment along either of the aforementioned methodologies. Furthermore, no supporting material was presented which showed objective evaluation criteria for the determination of cumulative impacts/trade-offs or any strategies for avoidance, minimisation or mitigation measures to address the competing objectives and determine the appropriate balance between entertainment uses and residential amenity.

Conclusion

62 Having considered the evidence, the submissions and undertaken a view, I am satisfied to rely on both the Court-appointed planning and acoustic expert opinions that this development satisfies the current controls and merits conditional consent. Of importance in this determination, is the condition that the development operate for trial period of 12 months to enable assessment of its operations and achievement of a "good neighbour" relationship with the nearby residents.

63 In considering the evidence presented to the Court, I have given careful consideration to the cumulative impact/saturation point policy in order to apply it on an objective basis. As the underlying rationale and evaluation criteria in terms of the competing objectives to encourage entertainment activities, whilst protecting residential amenity in this precinct is unclear, I have detailed the methodologies suggested by the town planners that are presented in the Ealing Study as a basis for such objective evaluation. I do this so that the review at the end of the 12 month trial period results in a positive community outcome.

64 In this regard, I note the evidence that the building alterations are likely to take some 18 months to complete, following which the 12 month trial starts. Therefore, there is a period of some 2½ years to undertake appropriate studies to establish objective evaluation criteria, which hopefully satisfies all stakeholders.

65 Notwithstanding this lack of evaluation criteria, Mr Fletcher undertook an assessment on the proposal and the objections involving antisocial behaviour and considered that this could be addressed to a reasonable extent through the provisions of the updated Plan of Management.

66 Likewise, Mr Heggie concluded that compliance with the conditions requiring upgrading of various parts of the building and with the agreed noise criteria, then reasonable standards of acoustic amenity would be achieved. This includes the level of amenity to be experienced by users of the Funk House. The conditions of consent require the 12 month trial period during which the noise generation can be regulated to achieve that currently accepted noise standards.

67 In this regard, I note that extensive internal alterations are proposed to the parts of the building to be used for the proposal. Accordingly this may necessitate adjustment of any noise sources and I consider a cautious approach should be adopted, whereby a condition of consent is imposed which restricts the provision of a dance floor, as suggested by Mr Heggie. Subject to the performance of the development within the 12 month trial period, this may be considered as a modification in future.

68 In summary then, I am satisfied that the proposed alterations to this existing building should be allowed to enable each change of use from the Hungry Jack's restaurant to the licensed nightclub. The conditions of consent require compliance with a Plan of Management, which restricts internal amenity to acceptable levels, and provides a security service to supervise and minimise antisocial behaviour arising from patrons of the development leaving the property. The security measures include CCTV surveillance of the building and exits, which should provide an increased level of surveillance and security for Springfield Plaza.

69 In the ultimate, no substantive, strategy details were presented to the Court, which indicated the overall public interest would not be well served by this development that reasonably satisfies the requirements for development within the Kings Cross Entertainment Precinct. If the saturation point has been reached, I expect some actual details as mentioned in the planners joint conference could have been provided to confirm this situation. This did not occur and the existing controls are being maintained, which continue to allow entertainment uses.

Court Orders

1. The appeal is upheld

2. Development consent is granted to development application D2006/00429 for alterations to the building at 23-31 Darlinghurst Road, Potts Point, and its use for a restaurant/night club, subject to the conditions in Annexure A.

3. The exhibits may be returned except for 3, 4, 6, 18, 20, 24, 25, 26, 27, C, D, G and L.

___________________

R Hussey
Commissioner of the Court
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