Vace Investments v Sydney City Council

[2004] NSWLEC 374

Land and Environment Court

of New South Wales

CITATION:	Vace Investments v Sydney City Council [2004] NSWLEC 374
PARTIES:	APPLICANT: Vace Investment Pty Ltd RESPONDENT: Sydney City Council
FILE NUMBER(S):	20325 of 2004
CORAM:	Roseth SC
KEY ISSUES:	Discretion :- revocation of Place of Public Entertainment Approval
LEGISLATION CITED:	Local Government Act 1993, ss 109 and 178
CASES CITED:	Masterbuilt Pty Ltd v Hornsby Council (1995) 87 LGERA
DATES OF HEARING:	05/07/2004-07/07/2004
DATE OF JUDGMENT:	07/15/2004
LEGAL REPRESENTATIVES:	Mr P Clay, barrister instructed by Ms J Henna of Arraj Lawyers Ms J Jagot, barrister instructed by Mr M Arch, council solicitor

JUDGMENT:

- 8 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

15 July 2004

20325 of 2004 Vace Investments Pty Ltd v Sydney City Council

JUDGMENT

1 SENIOR COMMISSIONER: This is an appeal against the revocation, under s 109(d) of the Local Government Act 1993 (the LGA), of a Place of Public Entertainment (POPE) approval for basement premises at 10-14 Martin Place Sydney. The appeal is made under s178 of the LGA. That section allows the Court to determine the appeal by affirming, varying or cancelling the instrument of revocation.

Background

2 The premises previously operated under the name of Berlin Bar, which was also in the applicant company’s ownership, though under a different name. The POPE approval for the Berlin Bar was subject to a maximum of 225 people on the premises. On 29 July 2002 and 9 August 2002, the Police found that the number of people in the Berlin Bar significantly exceeded 225. On 16 September 2002 the council revoked the POPE approval. The applicant appealed against the revocation. On 6 December the Court upheld the appeal subject to personal undertakings given to the Court by several persons connected with the applicant company and/or the operations of the bar, to the effect that they would ensure that the bar would henceforth operate in compliance with the conditions of approval.

3 The Veda nightclub took over from the Berlin Bar on 9 May 2003, when a POPE approval was granted subject to conditions that were similar to those attached to the approval for the Berlin Bar, including the maximum capacity of the premises being 225 persons. Three other conditions are relevant to this appeal, namely Conditions 1, 4 and 8(a). Condition 1 required that the method of checking the number of persons admitted into the public entertainment area shall be by a doorman and that this count shall be supplemented by a head count conducted by the licensee. Condition 8(a) required that the doorman must employ two counting devices (referred to as clickers), one for counting the persons entering and the other for counting those departing. Condition 4 required that the fire safety measures of the Building Code of Australia and the Environmental Planning and Assessment Regulations 1993 be observed.

4 On the night of 26/27 September 2003, the council’s compliance officer, Mr G Lim and Senior Constable C Larssen from the Rocks Local Area Command of the Police inspected the nightclub. Mr Lim counted 509 persons on the premises, noticed that the clickers were not in use and found some breaches of fire safety measures.

5 On 8 December the council issued a Notice of Proposed Revocation of the POPE Approval. The notice gave as reason the failure to comply with the condition that the capacity be limited to 225 persons. On 19 December the council revoked the approval. The appeal is against that revocation.

The applicant’s case

6 The applicant submitted that Mr Lim made a mistake and the number of patrons on the premises on the night of 26/27 September was in the order of 250-260, not in the order of 500. In case the Court accepts the council’s estimate, the applicant further submitted that the Court should uphold the appeal because

· the risk of future breaches is small,

· the system of limiting patron numbers is appropriate,

· the applicant proposes to adopt steps to ensure that the system will not fail again, and

· the consequences to the applicant of affirming the revocation are serious.

The issues

7 It was common ground between the parties that there was a breach of the maximum capacity of 225. The first issue is, therefore, whether the breach was significant (ie the number of people on the premises was around 500) or not significant (ie the number of people was around 250). The second issue is whether there are circumstances that should influence the Court to cancel the revocation, taking into account the risk to public safety, Veda’s system of controlling the number of patrons, the steps offered by the applicant to remedy past problems, and the hardship to the applicant if the revocation is affirmed.

Was the breach of capacity significant?

8 The Court heard four witnesses of fact. Mr G Lim, a building regulatory and compliance officer with the council, told the Court that he inspected the Veda nightclub at 12.40 am on the night of 26/27 September 2003 in the company of Senior Constable C Larssen. He saw two security men at the door. The clickers were lying on a ledge, not being used. The two security men told him that a third security person was in charge of the clickers and she had gone downstairs. The numbers on the clickers were 449 and 293, from which Mr Lim assumed that they showed patron numbers at 156. He then went downstairs and, using a hand counter, counted 509 patrons on the floor, excluding staff. At 1.10am he went upstairs, looked at the clickers again. They showed 500 and 299, indicating patron numbers at 201. Before leaving, Mr Lim found three breaches of fire regulations.

9 The entry for patron numbers in the Incidents Book was 208 at midnight and 201 at 1 o’clock.

10 Senior Constable Larssen told the Court that she had accompanied Mr Lim. She noted in her notebook that the clickers were not being used. When the security woman, whose name is Miriam, arrived from downstairs, she told the Senior Constable that the number of patrons in the premises was 156. When she met with the licensee, Ms D Winters, Ms Winters told her that the patrons were under the permissible number and that the backroom was closed. The Senior Constable then went downstairs with Mr Lim, who carried out his count. They found the backroom occupied by 40-50 people. When Mr Lim told her that he had counted 509 people, she was surprised but did not doubt the number. The Senior Constable then called for a video camera, which arrived 30 minutes later. She video-filmed the premises. Before the inspection was concluded, the Senior Constable read out her notes to Ms Winters, who then signed them. The Senior Constable then ordered the premises to close. Ms Winters closed the premises and the patrons left. The Senior Constable video-filmed the people leaving from the other side of Pitt Street. The video came to the Court as an exhibit. It was not suitable for estimating numbers.

11 Ms Winters told the Court that, when she was told that the Police were carrying out an inspection, she thought the number of patrons was around 200. When she told the Senior Constable that the back room was closed, she meant that the bar was closed, not that there were no people in it. Her estimate of the numbers on the dance floor was about 100, while the number in the main lounge was about 40. Ms Winters said that the female security person did not use the clickers because the nightclub was full and no new patrons were admitted. Ms Winters said that she signed the Senior Constable’s notes without reading them. The Senior Constable had not read them out to her.

12 Mr G Haidar, the nightclub’s door host stated in his written statement that he estimated the number of patrons at 200. He also stated that he was experienced in estimating numbers. After he had viewed the video, in oral evidence he changed his estimate to 250-260.

13 While the statements of Mr Lim and Senior Constable Larssen, on the one hand, and Ms Winters and Mr Haidar, on the other, are inconsistent, several conclusions can nevertheless be drawn from them. First, it is common ground that the security person, Miriam did not use the clickers as Condition 8(a) of the approval required. It is unlikely that the night of 26/27 September was the only occasion on which she left them on the ledge. I note that a number close to 156 (showing on the clickers at 12.40am) does not seem to appear in the incident book entry at either midnight or 1.00am. It is also not clear why, with the clickers showing 156, Ms Winters suggested the nightclub was full. I conclude from the above that the system of counting patrons (to the extent it existed at all) was unreliable.

14 Ms Winters’ said that the reason why the security woman Miriam left her post was that she had to periodically check the female toilets. This suggests the obvious question why the task of counting was not given to one of the two male security persons? If their duties included checking the male toilets, one of the two could have remained at the entrance to provide continuous counting.

15 Second, Ms Winter’s estimate of 20 people in the back room is inconsistent with Mr Lim’s estimate of 40 and Senior Constable Larssen’s estimate of 40-50. I note that Ms Winters said to Mr Lim and the Senior Constable that the back room was closed. While she told the Court that “closed” meant that the bar was closed, this is an odd bit of information to give to persons who are interested only in the number on the premises, not how many are drinking.

16 Third, neither Ms Winters nor Mr Haidar counted the patrons themselves. Nor did they request a re-count. The difference between 200 and 500 persons is so great that even a superficial re-count would have established which figure was in the ballpark. If the licensee and the door host thought that the patrons were around 200, why did they not suggest a re-count to prove to Mr Lim and the Senior Constable that they were correct.

17 Fourth, the signature and initials of Ms Winters appear in Senior Constable’s notebook where the figure of 509 also appears. While the two witnesses contradict each other on whether or not the notes were read out to Ms Winters, there is no doubt that Ms Winters had an opportunity to read the notes before signing them. If she felt pressured and confused at the time, she could have written a letter of protest shortly afterwards.

18 In my opinion, the number of patrons is likely to have been around 500 and there was a significant breach of the POPE approval condition restricting the numbers to 225.

Exercising the Court’s discretion

19 Mr L Elias, a director of the applicant company, gave evidence. His father and family own the company. He has had no experience in running a nightclub. He was not present on the night of 26/27 September. He said that if the Court found that there was a significant breach of the numbers, he would sack Ms Winters and the security company.

20 Mr P Clay, who was counsel for the applicant, submitted that, in exercising its discretion, the Court should take into account four matters: the risk to public safety, Veda’s system of controlling the number of patrons, the steps offered by the applicant to ensure that breaches do not occur in the future, and the hardship to the applicant if the revocation is affirmed. I shall consider these in turn.

21 It is clear that basement premises that are overcrowded pose a serious threat to public safety, since people may not be able to exit in case of a fire or other accident. I do not accept the submission that the risk of the numbers being exceeded in the future is small. The applicant company (under its current and previous name) has failed to control the numbers on at least three occasions. The night of 26/27 September was after several persons connected with the operation of the bar (including Ms Winters) gave an undertaking to the Court to the effect that the bar would operate in compliance with the conditions of approval. The fact that the security person was not operating the clickers and the number on the clickers did not tally with the entries in the Incidence Book or with anybody’s estimate of patron numbers, suggests that the lack of control was endemic.

22 I turn to the steps proposed by the applicant to remedy the situation. The applicant proposes to sack Ms Winters as the licensee and to appoint another security company. It seems to me that security staff are only as good as the instructions they get and the vigilance with which they are supervised. As for Ms Winters, it would be unfair to place the entire blame for the breach on her. She appears to have been ineffective in ensuring that patrons are accurately monitored, but she was only one of a number of people who are responsible.

23 I accept that the revocation of the POPE approval is a serious matter for the applicant. However, I must also take into account that the council has a duty to safeguard public safety. If an accident in an overcrowded nightclub resulted in loss of life or injury, the council would be criticised for not enforcing its conditions of approval. In this case the council has revoked the POPE approval twice. In an appeal against the first revocation the applicant persuaded the Court that it should be given a second chance. This appeal is against the second revocation, which is in response to the third breach. Giving the applicant a third chance would not only endanger public safety, it would also be unfair to the council in its endeavours to enforce the conditions of POPE approvals. The appeal is therefore dismissed and the revocation of the POPE approval affirmed.

Orders

1. The appeal is dismissed.

2. The instrument of revocation of the Place of Public Entertainment Approval No 1693 issued on 9 May 2003 for the basement level of 10-14 Martin Place Sydney is affirmed.

3. The exhibits are returned.

______________________
Dr John Roseth
Senior Commissioner