Shytot v Sydney City Council

[2006] NSWLEC 127

Land and Environment Court

of New South Wales

CITATION:	Shytot v Sydney City Council [2006] NSWLEC 127
PARTIES:	Applicant: Shytot Pty Ltd Respondent: Sydney City Council
FILE NUMBER(S):	11299 of 2005
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- Restricted premises
DATES OF HEARING:	16/03/2006
DATE OF JUDGMENT:	03/22/2006
LEGAL REPRESENTATIVES:	Applicant: Ms S Duggan, barrister instructed by Ms S McDougal, solicitor of Bray Jackson & Co Respondent: Mr S Kondilios, solicitor of Maddocks

JUDGMENT:

- 5 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

22 March 2006

11299 of 2005 Shytot Pty Ltd

JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal by Sydney City Council (the council) of a development application for

· use of the first floor as a sex-on-premises venue;

· use of the lower and upper ground floors as restricted premises;

· use of the whole premises as a Place of Public Entertainment (POPOE);

· extension of operation hours;

· internal alterations;

· new shopfront; and signage

on lot 1 DP 80250, known as 161 Oxford Street, Darlinghurst.

The premises

2 The premises are on the southern side of Oxford Street between Crown and Bourke Streets. They have been restricted premises for over twenty years. There is no issue with the location.

3 The building is unusual in that it is split-level. The ground floor is elevated half a floor above the street level, while the basement is only half a floor below street level. There is a small landing at street level between the two floors. This peculiarity of the building is significant in relation to the only remaining issue in the case.

The proposal and its history

4 The applicant intends to renovate the building and expand the range of activities. The applicant lodged the development application in May 2005. Following notification the council received four representations. Residents close to the rear of the premises were concerned with the building providing shelter to persons they considered undesirable. There is no public access to the rear. The applicant will provide better lighting in the rear to discourage people staying for long periods at the rear of the site.

5 A neighbouring establishment at 163 Oxford Street objected on the basis of the subject premises attracting undesirable customers, while the customers of the objecting establishment were “good, clean patrons”.

6 Neither the applicant’s planning expert, Mr K Nash, nor the council’s experts, Ms A Leong and Mr A Miles, suggested that the objections were a reason for refusal.

Relevant planning controls and policies
The South Sydney Local Environmental Plan 1998 zones the site Zone No 3 Business, making the proposed use permissible. Neither the LEP nor the South Sydney Development Control Plan 1997 on Urban Design includes provisions that are relevant to the application.

7 There are three policy documents/draft development control plans dealing with sex-related activities, namely:

· South Sydney Sex Industry Policy;

· City of Sydney Draft Regulation of Sex Service Premises DCP 2003; and

· Adult Entertainment and Sex Service Premises DCP 2005.

8 Despite their names, neither of the above three are adopted development control plans. The council’s advocate, Mr S Kondilios, suggested that the most up-to-date policy was the last-mentioned one. In any case, in relation to the only remaining issue between the parties, the three policies have similar requirements.

The issues

9 The council submitted a Statement of issues containing three issues. However, following negotiation between the parties at the site view and later during the course of the hearing, only one issue remained. That issue was whether the premises should incorporate a retail use at the Oxford Street frontage (Option A preferred by the council) or have a blank façade to the street (Option B preferred by the applicant).

Option A or Option B?

10 The parties presented sketched of the two options. Option B involves little change to the application beyond providing a more interesting and sympathetic treatment of the blank façade. In this option passers-by would see a door and an obscure glass façade divided to reflect existing proportions seen in other buildings.

11 Option A would involve relocation of internal stairs and counters and would reduce the area of the building available for commercial use. It would provide a retail area of 3.75m2 available for some other use such as a tobacconist, newspaper vendor or take-away coffee shop. Customers would have to stand on the footpath to be served, access to the shop would be through the restricted premises, and the sales person would have to use the toilet of the restricted premises.

12 In all three of the above-mentioned sex-industry-related policy documents the council has given expression to its desire that the relationship between restricted premises and the footpath should be through a doorway only, while the rest of a building’s façade is occupied by some active use, such as retailing. The restricted premises are required to be behind, above, or below the active use. This policy finds expression in the draft Adult Entertainment and Sex Industry Premises DCP as follows:

Active uses are encouraged to be presented to the street to promote surveillance and safety.

13 In the vast majority of cases, where buildings have a ground floor at street level, this policy has a great deal of merit. Whether the document in which the policy is contained is in draft or adopted form, I would give it major weight because it is aimed at achieving a better streetscape. I note, however, that the operative word is encouraged. I take this to mean that active uses should occur where it is practicable.

14 In the subject premises, however, the floors are split and the only area available for active use (ie a kiosk-type shop) is a rectangle of 3.75m2, accessible and serviced through the restricted premises. The shop’s clients would have to stand on the footpath. The sales person would have to use the toilet of the restricted premises. Moreover, the sales person would have to be over 18 years. If the sales person had a child or a relative under 18, that child or relative could never visit or assist at busy times.

15 If the shop were a take-away food outlet, it would need water and drainage. I doubt if 3.75m2 would be adequate to install a counter, fridge, sink and coffee machine and still have space for a sales person.

16 I have serious doubts whether a tiny retail outlet burdened with so many negatives should be imposed on an applicant who has not applied for it, has no interest in running it and would construct it only because it is legally bound to comply with the terms of the consent. The consent can require the retail outlet only to be constructed, not to be functioning.

17 Even if the applicant were successful in finding a tenant for the retail space, the active use is likely to occur for only a few hours a day. The rest of the time the public would see a closed glass window with a security grille. If the applicant were not successful in finding a tenant, the closed glass window would become permanent feature. This would be less attractive than the well-designed blank wall of Option B.

18 Finally, I note that the premises have operated for more than twenty years without an unrelated active use at the street frontage. For all these reasons, in my opinion Option B is to be preferred. The applicant has amended the drawings accordingly.

Orders

1. The appeal is upheld.

2. Development application for use of the first floor as a sex-on-premises venue; use of the lower and upper ground floors as restricted premises; use of the whole premises as a Place of Public Entertainment (POPOE); extension of operation hours; internal alterations; new shopfront and signage on lot 1 DP 80250, known as 161 Oxford Street, Darlinghurst is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 5, A and C.

________________
Dr John Roseth
Senior Commissioner