Solowave Pty Ltd v City of Sydney Council
[2006] NSWLEC 519
•24/07/2006
Land and Environment Court
of New South Wales
CITATION: Solowave Pty Ltd v City of Sydney Council [2006] NSWLEC 519 PARTIES: APPLICANT
RESPONDENT
Solowave Pty Limited
City of Sydney CouncilFILE NUMBER(S): 11504 of 2004 CORAM: Murrell C KEY ISSUES: Development Application :- appeal against conditions imposed by Council, hours of operation, security measures, roof, noise attenuation impact on surrounding area LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sydney City Local Environmental Plan
Local Government Act 1993CASES CITED: Jonah v Pittwater Council (2006) NSWLEC 99;
Zhang v Canterbury CC (2001) SWCA 167DATES OF HEARING: 01/06/2006-02/06/2006 and 24/07/2006 EX TEMPORE JUDGMENT DATE: 07/24/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr I. Hemmings, barrister
SOLICITORS
Instructed by Mr A. Whealy, solicitor
of Gadens LawyersRESPONDENT
Mr S. Kondilios, solicitor
Instructed by Ms P. Whitford, solicitor
of Maddocks Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Murrell C
11504 of 2004 Solowave Pty Limited v City of Sydney Council24 July 2006
This judgment was delivered extemporaneously and has been edited prior to publication.
1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against conditions imposed by the City of Sydney Council in respect of a development application for a nightclub in the premises known as No. 31-33 Oxford Street, Darlinghurst.
2 The current premises were known as the DCM Bar however it is to be known as the UN Bar in terms of the current development application before the Court. By way of background in May 1975 the first floor of the premises was approved as a licensed restaurant and cabaret and of more recent times there have been subsequent development applications and proceedings in this Court. In previous proceedings the Court directed the applicant to lodge a development application to use of the first floor of the premises as a nightclub as this use had not been approved previously. The proceedings are in respect of this application for a nightclub. The Court also directed that a joint acoustic consultant conduct an acoustic assessment of the first floor nightclub use.
3 The proposal is for a change of use of the first floor of the premises from approved licensed restaurant cabaret venue to a nightclub, trading hours are 24 hours, 7 days a week together with ancillary nightclub office use.
4 The premises in Darlinghurst on Oxford Street are on the southern side of Oxford Street between Brisbane and Pelican Streets and the ground floor comprises two retail shops with the first floor occupied by the UN Nightclub. The second floor is used as an office and storage area. The surrounding area consists of residential and commercial retail, café, restaurants and hotel uses and other nightclubs within the vicinity of the subject premises. Residential apartments are found on the opposite side of Oxford Street, on the northern side of Oxford Street and to the rear of the subject premises.
5 The council approved the development application for a nightclub on the subject premises and the date of the determination was 30 August 2004. The conditions of consent contained a number of matters that the applicant is currently appealing. In particular the operating hours of the subject premises; the number of security personnel and their identification; and other security measures such as metal detectors. Also the applicant is appealing against council’s condition requiring a new roof to enclose the premises as such for noise attenuation.
6 The Court met on site and heard from two resident objectors, it is noted when the application was notified that there was some 25 objections received to the development application. Those that gave evidence to the Court on site on the view were Ms Sarah Bibby, who she resides in the apartments opposite the subject site at No. 18-32 Oxford Street. She has lived there for approximately 2 years and her complaint concerns the bass vibration noise, or rather the bass vibration emanating from the subject premises as opposed to the emission of noise as such. She considers that the current operation between 11.00pm and 8.00am on a Saturday evening/morning is most disturbing in terms of the bass vibration felt in her premises, and also referred to anti-social behaviour in the street. Mr O’Brien from the same unit apartment block expressed similar concerns to the Court about the noise emanating from the subject premises.
7 There was reference to the fact that the premises operate beyond the trial period granted in a previous consent. I will state at the beginning that the Court must assess the development application on its merits and in that regard the judgment of Jonah v Pittwater Council (2006) NSWLEC 99 of his Honour the Chief Judge of this Court, Preston J was referred to the Court in respect of illegal uses and whether such activities can be taken into consideration in the assessment of a development application. His Honour provides guidance in terms of the fact the Court must assess the development application on its merits and in a determination to grant or modify a development consent it is irrelevant to enquire as to who is the current owner operator, or who might be the future owner operator or whether the present owner operator has in the past acted or used the land unlawfully, or whether the future owner operator is likely in the future to act or carry out any approved use unlawfully.
8 The council’s second submission is that the past unlawful use be taken into consideration and His Honour concludes that the mere unlawfulness of past use is not a relevant factor but that does not mean, however, that past use without any consideration of its unlawfulness can not ever be relevant. Therefore in this regard I have assessed the application on its merits, bearing in mind that there have been concerns raised about the noise emission, or in particular, the bass vibration.
9 The Court had the benefit of the Court-appointed expert, Mr Stephen Cooper, an acoustic engineer, in these proceedings and he provided recommendations to the Court and a Statement of Evidence. Ms Sally Grebe, council’s planning assessment officer, provided evidence to the Court, and Mr Robert Chambers, a consultant planner, provided evidence on behalf of the applicant. The council in these proceedings does not contest that the subject development should not be approved. The issue is the conditions that should be attached to the proposed consent in terms of providing for a set of conditions that would allow the premises to operate in a manner that is appropriate in terms of adjoining uses.
10 The area is one that is zoned under the City of Sydney Local Environmental Plan to allow a number and a range of uses and in the city edge zone, the objectives are to encourage:
- (a) mixed use medium density area which will provide a physical transition between the city centre zone and nearby lower density mixed use and residential areas,
(b) to encourage an increase in the permanent population through new residential development,
(c) to recognise the development potential of major sites, to enhance the amenity of parks, community places and the development within the city edge zone allows for a number of mixed uses and it is also apparent from the objectives of the central Sydney plan to the development of central Sydney as a vibrant, culturally diverse, multi-use city centre and the continued growth of permanent residential population, and,
(d) the protection of the intricate urban fabric of central Sydney.
11 It is recognised that Oxford Street is a ‘night entertainment’ area and there is evidence along this part of Oxford Street of many nightclub venues. It is also noticed that there are mixed uses in terms of other commercial uses and in terms of residential development. The evidence of the objectors is that there is a history of complaints in respect of noise in the area. The environment in which the subject premises is located is a mixed environment in terms of the uses that co-exist. It is also important to note that a reasonable degree of residential amenity should be afforded to local residents but at the same time residents that live within such an area can not expect the same amenity as other suburban residential locations, or even some other inner-city urban areas given the fact that this area is identified as a night entertainment area. However, the role of the Court is to assess the appropriateness of a development application to ensure that there is not unreasonable impacts created by developments. The proposed development with other commercial development is permissible in the zone and council’s objectives in terms of a vibrant area are ones that should be considered in terms of the development of this area. At the same time unreasonable impacts do not and should not have to be tolerated by other premises, including residential.
12 For the issue in the proceedings concerning the security measures the applicant considers that the security measures for metal detectors, that is, by way of handheld metal detectors or a frame, should not be required for the subject premises because it was submitted to the Court on behalf of the applicant that the lack of a study or research into the impacts of such detectors on future patrons, or the psychology of future patrons, to an establishment such as this bar should be taken into consideration or should be in evidence prior to the implementation of such a provision. However, I am satisfied that there are reasonable planning grounds on which to impose the condition proposed by the council in terms of a metal detector. The absence of specific research on patrons is not accepted as a reason the condition is inappropriate in the circumstances.
13 It would be the applicant’s choice as to whether metal detection of patrons entering the premises be by way of handheld detectors or a metal frame. The fact that there may be an influence in terms of the behaviour of patrons might be paralleled to plans of management which require certain conditions to be satisfied to seek to influence the behaviour of patrons when leaving licensed premises. One does not require a study to understand the psychological impacts of such requirements on patrons of premises and clearly such conditions are to ensure that uses co-exist in a relatively harmonious fashion without unreasonable impacts. Metal detectors are something that are part and parcel, perhaps regrettably, of this day and age in many areas and it is not considered unreasonable that they be required in the location of the subject premises and for the use of the subject premises.
14 The other issue contested by the applicant concerning security personnel is the numbers of security personnel. The council require six persons, that is, two at the door and four security personnel upstairs in the nightclub at any one time. The two on the door is not opposed by the applicant for Thursday, Friday, Saturday and Sunday nights. Similarly in my assessment four upstairs should only be required on the busy nights. At other times two upstairs, as a minimum, is required. The purpose of the security personnel is to provide for security of patrons and in the event of disturbance.
15 The applicant is also opposed to the security personnel being clearly identified and in this regard the council was seeking that the security personnel wear fluorescent vests to clearly distinguish them. The Court also heard evidence from the Sergeant of Police in the licensing area at Surry Hills. He is of the opinion that the security guards should be distinguishable from other patrons and from other personnel or employees of the establishment. He advised the Court in his opinion the identification of security personnel is also important in terms of when incidents occur in and around such licensed premises. I accept the evidence of the Sergeant and the fact that other premises do not require identification of security personnel, once again in my assessment, is not a reason as to why the Court should not impose a condition requiring identification. The means of identification by fluorescent vests, whilst this would make them clearly identifiable and distinguished this is not necessary. However it is necessary for each security officer to wear a number that is permanently affixed to their shirts to ensure that they are easily identifiable within the premises and also identifiable at the door. The need for identification is so that patrons can quickly see who security personnel are and then for the security personnel to be identified in terms of a book or register of the subject premises when they commence shifts. As such I have decided that a condition is appropriate and I will provide details of the requirements for the identification.
16 For the hours of the operation of the subject premises the applicant is seeking a period of 24 hours, 7 days a week for a trial and then the core hours in the development consent or the standard hours to be 3.00am. The respondent on the other hand considers that the standard hours should be at midnight closing, and the 12 month trial period should be for a 3.00am extension.
17 The Court has had regard to the evidence and has had regard to the need for the subject premises to co-exist within the area and not create unreasonable impacts. I have assessed the hours of operation also in the light of the evidence of the acoustic expert. The expert evidence of Mr Cooper is that he has drafted conditions, such that the subject premises would have to require monitoring to ensure that his noise readings and his limiters are subject to independent monitoring over a period. In terms of the trial period, three independent monitorings are required to ensure that the subject premises do not emit noise that would disturb the residential amenity of the apartment buildings in the vicinity of the subject site.
18 The Court heard evidence from Mr Cooper that the noise concerns may be with respect to other premises within the vicinity of the subject site. This is not a matter for these proceedings as such. In these proceedings it is important for the Court to have regard to the conditions required to ensure the subject premise do not create noise disturbance or noise disturbance to the subject area and I am satisfied that with the conditions and the noise levels to be complied with would not unreasonably impact on the residential amenity of the area, in particular, between the midnight period and the early morning period.
19 The Court has had regard to the fact that if the noise levels are exceeded then the premises are to be closed and that therefore the checks provided for in the application satisfy the Court that there is no reason as to why consent should not be granted subject to the stringent conditions that are proposed in the conditions and also the additional conditions recommended by Mr Cooper during the proceedings. The Court recognises the conditions provide for a requirement that if the noise is exceeded, in particular during the early hours of the morning from midnight, then the subject premises also have to cease operation.
20 On the basis of Mr Cooper’s evidence in Court assessment with the noise conditions provided that the roof structure over the subject premises is not required. In this regard it is important to note that his concerns with respect to the noise relate to the concern of the average level of settings and therefore a noise tripper as such is not appropriate but the concern is for the average level of settings and it is also proposed as a condition that there be guidance in terms of the noise limiter not being tampered with and the condition is to ensure that it is only to be opened by the appropriate personnel and as such the noise level can not be raised or reset. The subject premises must comply with the noise limiters and with the maximum noise sound levels recommended by Mr Cooper. Independent monitoring as I stated is also a condition and that is to be carried out three times during the 12 month trial period.
21 In terms of having regard to the location of the subject premises in a vibrant night entertainment area, and having regard for a balance in terms of maintaining a reasonable residential amenity, I consider that it is appropriate that on a 12 month trial basis, that for Fridays and Saturday nights and any night preceding a public holiday that 24 hours be allowed and after the trial 12 month period closing is to be midnight. Therefore the standard hours from Sunday through to Thursday night 3.00am closing time for a 12 month trial period and thereafter it would revert to midnight closing for what is referred to as the standard or core conditions.
22 In terms of a trial period it is appropriate that the subject premises be given a trial period and this is consistent with the judgment of his Honour, Spigelman CJ, in the matter of Zhang v Canterbury City Council (2001) SWCA167 115LGR A373 where His Honour states the implications of the approach of allowing a trial period indeed is very purposeful for the probationary or trial period. The scope and purpose of the Act is better served by permitting experimentation at least in circumstances where adverse affects will cease if the development consent were not in the event extended, the focus is then on the likely impact during the probationary period. I am satisfied that the likely impact with the conditions on noise emission and the requirement for the premises to cease operating if there are exceedences in the noise levels provided for by Mr Cooper is appropriate. It safeguards even in the 12 month period unreasonable noise emission from the subject premises, but at the same time a trial period is appropriate such that the applicant would have the opportunity to demonstrate whether the premises can operate in accordance with the conditions of consent.
23 Prior to the 12 month trial period ceasing the applicant would need to submit a further application for the extended hours outside the standard hours contained in the condition No. 6 of consent. This refers to the hours of operation of the premises being restricted from 8.00am to midnight, 7 days a week.
24 The issue of the electronic gaming machine area requiring a blackout period within the 24 period each day requires a condition such that there would continue to be a 6 hour shutdown period of the gaming area.
25 The conditions I will now address so that the parties understand the conditions of approval that the Court will issue.
· The acoustic works to the roof, is condition is to be deleted and the works to the roof are not required as part of this development consent.
· If however the noise could not be contained as per the other conditions of the consent and if the applicant sought to extended period and the monitoring reports revealed a lack of compliance then in a future application there may be a reassessment of the roofing structure. But this would be the matter of a further development application.
· In terms of the acoustic requirements for the limiters, Mr Cooper considered to be a most important condition for the subject premises and Mr Cooper’s requirements are set out in exhibit 10 and have been contained in both the applicant’s and the council’s conditions that were referred to the Court on 14 June.
· The further acoustic testing, condition 5(A) as in council’s proposed conditions, will read “a further acoustic report with measurements must be submitted to the council within thirty days of the commencement of the trial as such and it will be important for the applicant to advise the council of the commencement of the trial period such that 12 months can be measured from that point.
· In terms of condition 5(B) of council’s conditions, I note that it requires an amendment to delete parts A and B, that was when a ‘deferred commencement’ was required, and the parties have agreed that the conditions encompass or substitute for the need for a ‘deferred commencement’. It is noted that the applicant’s conditions delete the reference to the ‘deferred commencement.
· The hours of operation are as I stated earlier and condition 8, that is the works required prior to the POPE, perhaps should be an ‘advice to the applicant’ as opposed to a condition of this application because it is clear in terms of condition 15 that the use of the premises for entertainment shall not commence until there has been an application under the Local Government Act . The conditions on noise:· The requirements of the further acoustic testing in (C) require an annual noise compliance, that the applicant agrees with and then (D) requires during the 12 month period that independent noise compliant testing must occur on at least three occasions carried out by a qualified and independent acoustic engineer and I note the applicant also agrees to that condition.
26 Condition 17 also provides a brace in terms of during the period 12 midnight to 7.00am the use shall be inaudible in any habitable room of any residential premises so this is a further safeguard over and above the other conditions on the acoustic noise from the subject premises.
· With respect to the issue of management of the video surveillance, the council required this to be in digital form and the Sergeant of Police considered this was more appropriate. However given the quality of the system in terms of condition 19(C) is to be assessed annually and the applicant and the council agree on the condition, also states that if the system is found not to comply with the requirements of condition 19 corrections and improvements to the system shall be undertaken and a further audit and assessment carried out within fourteen days. Therefore in my assessment it is not necessary for to specify now that digital form is mandatory but in the future digital technology may need to be provided to satisfy the quality control. So once again at the end of the day it is the product in terms of the quality of the surveillance record that is important and if that is required to be in digital technology to ensure that quality then that may be required.
· The metal detector and security under condition 21 is to ensure all patrons produce sufficient identification prior to entry and all patrons entering the premises will be subject to a search by handheld or walkthrough metal detectors. As I stated earlier, it is a matter then for the applicant whether handheld or walkthrough metal detectors are preferred and, as I stated, it is considered that regrettably this is becoming increasingly a way of life and I do not consider it is an unreasonable or onerous condition for the subject premises.
· For security personnel I have determined that at all times when security personnel are working at the premises they must be clearly identified by way of an individual permanently affixed number to the shirt of the security officer with the minimum dimensions for the word ‘security’ to be 30 mm in bold fluorescent print and for the individual numbers shown under the word security these are to be 60 mm bold fluorescent to appear on the left-hand front breast of the security personnel’s shirts as well as on the centre back of the shirts with the same dimensions. The names of the security personnel, as indicated, must be entered into a book and the book register must be available to Police, as agreed to between the parties (condition 22).· In terms of the security personnel as agreed between the parties they must be placed inside the premises at a ratio of no less than one security person per 100. On a Friday and Saturday evening I have determined there would be a requirement for two security personnel at the front door and four security people in the upstairs nightclub area.
· The condition No. 23 refers to the premises to be operated in accordance with the plan of management annexed to this consent and it forms part of the consent and can only be varied with the consent of the council.· An additional condition required as mentioned earlier that the gaming area shall have block out period each day as required by law.
27 The applicant must submit a plan of management to reflect and to be consistent with this judgment to the council within seven days so that council has seven days in which to comment on the plan of management and forward to the Court together with an amended set of conditions within fourteen days of today’s date.
28 The issue of a construction certificate I referred to during the proceedings and whether there still is a need if the roof is not required. And in my determination the roof is not required as part of this consent. The question is whether the consent operates from the time of the occupation certificate or another time as notified by the applicant to the council will be a matter to be further discussed between the parties.
29 Therefore, on the basis of my assessment with the assistance and the benefit of the Court appointed expert Mr Cooper, the Sergeant of Police and the planners in these proceedings, the formal orders of the Court on the receipt of the documentation, that is, the plan of management as agreed to between the parties and a set of conditions to also reflect my determination I will then issue the formal orders of the Court in chambers to be as follows:
1. The appeal against conditions attached to Council’s consent granted 30 August 2004 for the premises at 31-33 Oxford Street, Sydney is upheld in part.
2. The development application submitted to the City of Sydney Council and as amended for a nightclub is approved subject to the conditions contained in Annexure ‘A’.
3. The exhibits except 1, 8, 10, A and F are returned to the parties.
___________________
- J S Murrell
Commissioner of the Court
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