Land and Environment Court New South Wales Medium Neutral Citation: Williams v Council of the City of Sydney [2021] NSWLEC 1774 Hearing dates: 22 October 2021, 3 November 2021 Date of orders: 17 December 2021 Decision date: 17 December 2021 Jurisdiction: Class 1 Before: Clay AC Decision: The Court Directs that: (1) The parties shall within 2 business days file agreed conditions reflecting these reasons for judgment. Catchwords: DEVELOPMENT APPLICATION – restricted premises – formerly restaurant and bar – adjacent to residential premises – application of locality controls in development control plan – character of the street in terms of uses – hours of operation – impacts from patrons Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.17, 8.7 Sydney Local Environmental Plan 2012, cl 2.3 Cases Cited: Cirillo v Council of the City of Sydney [2018] NWSLEC 1018 Iguana Bar & Restaurant Pty Ltd v The Council of the City of Sydney [2021] NSW LEC 1775 Jeffrey v Canterbury-Bankstown Council [2021] NSWLEC 73 Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; 2006 NSWLEC 99 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 Texts Cited: Sydney Development Control Plan 2012 Category: Principal judgment Parties: Timothy Williams (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: J Fan (Solicitor) (Applicant) A Singh (Solicitor) (Respondent) Solicitors: Lindsay Taylor Lawyers (Applicant) Council of the City of Sydney (Respondent) File Number(s): 2020/48750 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by the Respondent (Council) of Development Application D/2019/1135 (DA) for the use of the ground floor of the premises being Lot 11 Deposited Plan 625743 known as 13-15 Kellett Street, Darlinghurst (site or premises) as a restricted premises (adult entertainment premises) in conjunction with the existing licensed bar and restaurant. 2. The DA was amended with the agreement of the Council by lodgement on the NSW Planning Portal on 29 October 2021 and was filed on 2 November 2021. The amended DA (which shall still be referred to as the DA for the purposes of this judgment) seeks consent for the use of the premises as what is colloquially called a strip club which is within the species of restricted premises as defined below. It is no longer proposed to carry out the strip club use in conjunction with the existing licensed bar and restaurant. 3. The premises has operated as a strip club for some time and trades as "Dollhouse Nightspot". The Council considers that the use of the premises as a strip club is unlawful and on 23 July 2019 issued an order to the operator of the business at the premises, Iguana Bar and Restaurant Pty Ltd (Iguana) under Division 9.3 Schedule 5, Part 1 of the EP&A Act to cease using the premises as a strip club (Order). 4. On 19 August 2019 Iguana appealed against the Order (proceedings 2019/258043) (Order Appeal). That appeal was heard with this appeal and, insofar as it was relevant, evidence in one appeal was evidence in the other. 5. The Applicant and Iguana argue that the conduct of the strip club is authorised by prior development consents or other instruments of approval and a further development consent is not required. 6. The DA is therefore made by the Applicant without admission that the activities proposed require a further development consent. Be that as it may, the DA must be considered on its merits, without any consideration as to whether development consent is in fact required because the proposed use may be authorised by the earlier instruments. The prior conduct of the premises is relevant only insofar as it assists in understanding the impacts of the prior use, but whether or not the prior use is unlawful is itself irrelevant (Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; 2006 NSWLEC 99). 7. The question is at the heart of the Order Appeal is whether the conduct of the premises as a strip club is authorised and therefore the Order would be maintained. It is the common position of the parties that if consent is granted to the DA, then in the Order Appeal the appeal should be allowed and the Order revoked (see Iguana Bar & Restaurant Pty Ltd v The Council of the City of Sydney [2021] NSW LEC 1775.) 8. For the reasons which follow I have determined that conditional consent may be granted including a trial period for late trading and reduced numbers of patrons. Site and surrounds 1. The site is rectangular, with area of approximately 525sqm. It has a primary street frontage to Kellett Street and a secondary street frontage to Mansion Lane. The site contains two terraces that are part of a row of three storey terraces. 2. The ground floor of the two terraces has been consolidated into one tenancy, with a central entry from Kellett Street and a partially enclosed outdoor seating area within the front setback. The two upper levels are used for residential dwellings, with 4 one-bedroom dwellings and 2 two-bedroom dwellings. 3. There are two residential entries and stairs from Kellett Street on either end of the site. The dwellings have balconies facing Kellett Street and Mansion Lane. The site is a heritage item (I1135) being Terrace Group (13-17 Kellett Street) including interiors and front fencing. The site is located within the Potts Point Conservation Area (C51). 4. A location plan is below: Kellett Street commences at Bayswater Road and after about 110m turns right at 90 degrees to a further section of about 80m to the intersection with Ward Avenue. It is within the latter section that the premises fall. 1. Surrounding land uses include residential, commercial, restaurants/bars and brothels. 2. To the east of the site is a terrace at 17 Kellett Street containing 3 one-bedroom dwellings, 1 two-bedroom dwelling and 1 commercial tenancy. Further east is a residential apartment building at 19 Kellett Street. To the west of the site are terraces at 9 and 11 Kellett Street which contain commercial uses at ground floor level and residential uses above. 3. On the opposite side of Kellett Street are brothels at 48 and 50 Kellett Street, a commercial terrace at 52 Kellett Street, and a mixed use commercial and residential development at 54-64 Kellett Street. The terrace group comprising 3-11 Kellett Street directly to the west is a heritage item (I1134). 4. Kellett Street has two distinct characters – from Bayswater Road until the turn the dominant built form is apartment or commercial buildings, some of which do not address Kellett Street but have a frontage on Darlinghurst Road. Uses at the ground floor include hotel, back of house uses, apartment entries and small commercial uses. 5. After the turn of Kellett Street the character changes. The Applicant's landlord described it as the "Paris end" of Kellett Street which may be a little hyperbolic, but it is a very attractive tree-lined block principally comprising terrace houses with a combination of commercial, restaurant and residential uses. 6. The parties helpfully prepared an agreed Summary of Surrounding premises which is reproduced below: 1. The restaurant uses in the block are on the same side of the street as the site the subject of the DA. The two brothels are on the other side of the street. It is relevant to note the hours of trade and capacity of the adjacent and nearby restaurants/bars because the character of the area, by references to use not built form, is a critical part of the assessment. The street numbering is from north to south, dealing with the western side of the street. 3 Kellett Restaurant - Ezra 8am-midnight Mon-Sun (Indoor and outdoor) 98 patrons (2 year trial period to midnight from 31 August 2021) 5 Kellett Bar – Casa Merida 8am-11pm indoor, 8am-8pm outdoor, 7 days 58 patrons 7 Kellett Restaurant - Deans Wed-Thur 5pm-midnight Fri-Saturday 5pm-3am the following day 92 patrons 9 Kellett Restaurant – Caffe Roma Mon-Fri 12 noon-2am the following day Sat 12noon-2.30am the following day Sun 12noon-midnight 50 patrons 11 Kellett Non-restaurant use at ground floor (Commercial) 13-15 Kellett Subject site Proposed hours 12noon-4am the following day 150 patrons 17 Kellett Residential 19 Kellett Residential Each of the restaurant/bars has residential uses above. The Proposal 1. The Amended Statement of Environmental Effects (ASEE) filed with the amended DA describes the proposed operation in the following terms: "Trade between midday and 4am the following day; A maximum of 150 patrons and 30 staff, security and entertainers; Provision of adult entertainment in the form of strip tease and nude dance to amplified music (the entertainment will not be visible from the public domain); Minimum security deployment on one security guard per 100 patrons; Clear roles for staff including Duty Managers, Licensee and Responsible Service of Alcohol; and A detailed and robust Plan of Management." 1. The description is not complete as a description of either the proposed operation of the premises or the proposed development. The service of alcohol is part of the operation, and the operation will effectively be a bar where adult entertainment is provided. There are also minor alterations and additions to be carried out. A plan of the premises as proposed for the operation is reproduced below: The circumstances of the amendment of the DA should be recorded. During the course of the Applicant's submissions on the first day of hearing, the Court expressed concern, verging on scepticism, that the then proposal could be approved when the restaurant component of the proposal remained, notwithstanding that there was no viable kitchen in the premises and the layout was an anathema to what one would expect of any restaurant. 1. The Applicant made an application for adjournment to enable the amendment of his application. 2. The Council did not oppose the adjournment, and foreshadowed that it would not oppose the Applicant amending the DA to simply apply for development for the purposes of restricted premises (adult entertainment premises) alone, without what had been described as the existing licensed bar and restaurant. The proceedings were then adjourned, and the amendment made as noted above. Planning regime 1. The site is zoned B4 - Mixed Use pursuant to Sydney Local Environmental Plan 2012 (SLEP 2012). Clause 2.3(2) of SLEP 2012 commands that: The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 1. The objectives of the B4 zone are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To ensure uses support the viability of centres. 1. The land use table for the B4 zone is of the type in which effectively all uses other than those prohibited are permissible uses: 2 Permitted without consent Home occupations 3 Permitted with consent Boarding houses; Centre-based child care facilities; Commercial premises; Community facilities; Educational establishments; Entertainment facilities; Function centres; Hotel or motel accommodation; Information and education facilities; Medical centres; Oyster aquaculture; Passenger transport facilities; Recreation facilities (indoor); Registered clubs; Respite day care centres; Restricted premises; Roads; Seniors housing; Shop top housing; Tank-based aquaculture; Any other development not specified in item 2 or 4 4 Prohibited Extractive industries; Heavy industrial storage establishments; Heavy industries; Pond-based aquaculture 1. Restricted premises are defined in the dictionary to SLEP 2012 in the following terms: restricted premises means premises that, due to their nature, restrict access to patrons or customers over 18 years of age, and includes sex shops and similar premises, but does not include a pub, hotel or motel accommodation, home occupation (sex services) or sex services premises. 1. The Council accepts that premises which provide adult entertainment of the nature proposed and serve alcohol and other beverages fall within the definition of restricted premises (see eg Cirillo v Council of the City of Sydney [2018] NWSLEC 1018 (Cirillo)). 2. Sydney Development Control Plan 2012 (SDCP 2012) applies to the site. Whilst not determinative of the proper construction of the provisions of SLEP 2012, the proposal is also consistent with the following definitions in SDCP 2012: "Adult entertainment premises means a premises that: (a) provides entertainment involving nude or semi-nude performers; or (b) sells or shows restricted material but at which sex services or sexual activity between people does not occur. … Striptease club means premises providing striptease acts, erotic dancing (including pole dancing), tabletop, or podium performances, private dancing, peepshows, or nude or semi-nude bar or waiting staff but where sex services do take place on site." 1. SDCP 2012 provides for location controls of Adult Entertainment Premises in section 4.4.6.1: "Objectives (a) Provide criteria for the location, design and ongoing management of premises used for the purpose of adult entertainment and sex industry uses to: (i) address the health and safety of staff and visitors; (ii) minimise adverse impacts that may be generated by the premises including traffic and noise; and (iii) ensure high levels of internal and external amenity. (b) Ensure sex service premises do not interfere with the amenity of the neighbourhood. Provisions 4.4.6.1 Location of Premises (1) Adult entertainment and sex industry premises must not be located: (a) within buildings containing a residential use; (b) immediately adjacent or directly opposite land developed for residential purposes; (c) adjacent or directly opposite a sensitive land use as defined in the definitions above unless separated by at least: (i) one other non-sensitive land use; or (ii) a waterway, an un-developed site or a road, each of which are to be greater than 30m in width; or (iii) (sic, should be read as (d)) within a radius of 75m of an existing, approved adult entertainment or sex industry premise as measured from the centre of the primary access to the proposed and existing premises. This includes premises located within a neighbouring local government area." 1. The Council points out in its contentions that there are two breaches of this control. First, that the premises are within a building containing a residential use – there are dwellings above the premises. Second, that there are three approved sex industry premises within a radius of 75m – the two brothels across the street at 48 and 50 Kellett Street and around the corner at 20-22 Kellett Street. It was the 2 across the road which the Council particularly concerned the Council. 2. The Applicant says that the proposal meets the objectives of the controls and that the non-compliances should not lead to the refusal of the DA. I will deal with this later in the judgment. 3. SDCP 2012 also has provisions concerning hours of trade. It is common ground that for the purposes of the trading hours provisions the proposed use is properly characterised as Category A – High Impact Premises. Section 3.15.3 sets out the matters for consideration to determine the appropriate trading hours, relevantly: "(1) Appropriate trading hours for late night trading premises will be determined by taking into account a number of issues, where relevant, which include, but are not limited to: (a) the location and context of the premises, including proximity to residential and other sensitive land uses and other late night trading premises; (b) the specific nature of the premises, its activities and the proposed hours of operation; (c) the likely impact on the amenity of surrounding sensitive land uses, including noise, and the ability to manage the impacts. ……. (f) the contribution that late night trading proposals make to street activation and vibrancy of an area at night. (g) the likely impacts arising from the closing times and patron dispersal of the proposed and existing late night uses, including consideration of unlicensed late night trading in an area, such as shops, businesses and food and drink premises. (h) the existing hours of operation of surrounding business uses. (i) the size and patron capacity of the premises. …… (l) submission of a plan of management that demonstrates a strong commitment to good management of the operation of the business, particularly in relation to managing potential impacts on adjoining and surrounding land uses and premises, as well as the public domain. ……." 1. The site is within a Local Centre for the purposes of this part of SDCP 2012 and Table 3.7 sets out the base and extended trading hours for premises within a Local Centre: Base hours 10am to 10pm Extended hours 10am to midnight 1. There are also provisions relating to trial periods in section 3.15.4 of SDCP 2012: "(6) Extended trading hours beyond base hours may be permitted at the initial application stage, but only where the Council has determined that the premises have been or will be well managed, including compliance with an approved Plan of Management (7) At the completion of a trial period a new application must be lodged to either renew existing trial hours or to seek an extension of trading hours. (8) Premises seeking extended trading hours may be permitted up to two additional operating hours per trial period if a previous trial period is considered by the Council to have been satisfactory, unless eligible for an additional one trial hour under sections 3.15.4 (16) and (17). (9) Trial periods may be permitted up to the following durations: (a) First trial – 1 year; (b) Second trial – 2 years; (c) Third and subsequent trials – 5 years. (10) Once the full range of extended trading hours is reached an application must be lodged every 5 years to renew trading hours." 1. The effect of the provisions relating to trading hours is that the standard hours for premises such as the present are 10am to 10pm with extended hours available to midnight on a trial period basis. Of course, the objectives of the provisions need to be considered as well as the context of the site itself. 2. There are no express identified objectives, but the objectives can safely be gleaned from the introduction to Part 3.15 of Section 3 of SDCP 2012 headed "Late Night Trading Management" which provides relevantly: "This section assists in encouraging diverse late night trading in the city to meet the social and cultural needs of the community, while managing the effects of these uses on the neighbourhoods in which they are located. The City's night-time economy is an integral part of its commercial, cultural and social fabric. Late night trading premises are an important part of Sydney social and cultural life and play an important role in contributing to the City's economic growth and standing as a global city. Late night trading supports a 24 hour economy where residents, workers and tourists can access a diverse range of businesses for convenience, leisure and entertainment. Late night trading premises also provide employment and jobs with flexible hours. …. The provisions do not set out to curb or increase potential trading hours in a blanket fashion throughout the City, but allow opportunities for late night trading hours in appropriate locations and with appropriate management actions. The provisions also identify shorter operating hours for late night trading in areas within a predominantly residential context. Longer trading hours are contemplated for premises located in places where impacts on amenity in residential neighbourhoods are likely to be lower and are considered capable of being adequately managed. …… Late trading hours are considered by the City of Sydney Council to be a privilege. Late trading hours will only be approved in circumstances where an ongoing commitment to good management is evident through a series of successful trial periods. It is particularly important for proponents of late night trading premises with greater effects on surrounding uses to demonstrate responsible management over time. This commitment should be demonstrated both at the application stage and throughout the history of the operation of the premises. ……. Generally, late night trading areas are places within the City of Sydney that already or have historically been characterised by late night trading and related activity, for example George Street and the wider CBD, or are suitable areas identified for late night trading in the future. Longer trading hours may be permitted where it is considered that there is capacity for more late night uses to operate which reinforce the existing character of late night trading areas and do not create adverse impacts on residential areas." 1. It is clear that the aim of the provisions is to allow, even encourage, late trading as part of the night time economy, but to ensure that the location is appropriate by reference to the impacts, and in particular, where impacts on residential properties are likely then trading hours are to be shorter. Ensuring the good management of the premises is also a significant objective of the controls. The prior conduct of the premises 1. The parties have helpfully agreed on the events recorded on the Computer Operational Policing System records (COPS records) which are relevant. They disagree in part as to whether the events demonstrate good or poor management, and the extent to which they represent impacts on the neighbourhood. The table is Annexure A to these reasons. I will summarise the relevant events in the table in paragraph [48] 2. I observe that, like most licensed premises in the Kings Cross area, the premises were regularly inspected during trading hours by local police including the licensing police. The COPS records refer to such inspections as "Business Inspections". The Business Inspections are not a response to a report of some sort of activity but are a regular inspection during the ordinary course of the police officers' work. The planners agreed that the period for consideration was only from late 2017 when the present licensee began managing the premises. 3. The regularity of the business inspections also means that there are frequent opportunities for the police to observe the conduct of the premises, often the visits were weekly, which is typical of premises in Kings Cross. 4. The Applicant says that it has hitherto had the capacity to trade 24 hours per day and has a capacity of 270 patrons, staff, entertainers and security. The Applicant has not provided any information as to the nights when it has traded nor the number of patrons at the premises at any time. 5. The COPS records on occasions indicate the number of patrons at the premises. The police have recorded number of patrons between 5 and 50, and most often in the order of 20 to 30. This is not conclusive evidence that there are not more patrons at the premises from time to time but is the only evidence presently available. The time of the patron counts by the police vary, but many are in the period from 11pm to 1am and generally on weekend nights. 6. The impact of the COVID-19 Pandemic needs also to be taken into account. The premises were closed, in accordance with the relevant health legislation during the following periods: 2020 Closed from 27 March Reopened 1 June 2020 2021 Closed from 25 June Reopened 20 October 1. It is also notorious that during the pandemic there has been a significant downturn in patronage in the entertainment and hospitality industries. The Applicant is likely to have been no exception. 2. I do not assume therefore that the COPS events recorded are in the context of the premises operating with anything like what was said to be the capacity of the premises of in excess of 200 patrons. I will assume, favourably to the Applicant, that from time to time there have been in excess of 50 patrons at the premises and occasionally numbers approaching the proposed capacity of 150 patrons. 3. The summary of relevant events is: 2017 (from Dec) 1 drug detection Police called on 3 occasions to deal with patrons for touching dancers, being argumentative, ejected patron 2018 1 Security guard technical breach 1 patron drug related matter 2019 1 record keeping failure 1 patron touching entertainer 2020 Management failure leading to Liquor Act breaches At least 6 patron drug related matters Police warning about potential Liquor Act breaches Patron behaviour requiring Police attendance 2021 At least 4 patron drug related matters Poor record keeping 2 Public Health failures Patron intoxication Patron touching performers 1. Whilst the facts of the events as recorded by the Police are not in issue, the planners differed as to whether some of the events were indicative of poor management. I will return to that subject matter when dealing with their evidence. 2. It should be noted that the premises have not at any time operated under the auspices of a rigorous plan of management. At its highest there appears to have been an agreed "Code of Conduct" adopted in the late 1990s but it bears little resemblance to what one expects today as a comprehensive plan of management. Issues 1. There are two principal issues: 1. Whether the proposed use as restricted premises (including the proposed hours of operation) is compatible with the residential uses located within the building and immediately adjacent to the building, particularly having regard to the zone objectives and the location controls in SDCP 2012. 2. The location of the premises in breach of the 75m radius control will result in a concentration of adult entertainment and sex industry premises the cumulative impact of which is unreasonable. 1. Issues which had previously been raised in the Council's Statement of Facts and Contentions have been resolved, namely: * Inadequate plan of management – the proposed plan of management has now been amended and the Council accepts it is in an appropriate form in the event the Court determines to grant development consent. * Staff facilities are inadequate – the combination of amended plans and conditions have ensured that the facilities are adequate. * Heritage – unauthorised works affected the heritage fabric and there is now agreement as to the minor corrective work to be carried out and there are appropriate conditions giving effect to that agreement. 1. There were other issues which related to the original DA and which are no longer applicable having regard to the amended DA. Evidence - Police 1. The Kings Cross Area Command of NSW Police made a submission dated 20 October 2020. (An earlier submission dated 11 November 2011 simply recorded details of other proceedings relating to the prior licensee and is not relevant now.) 2. The Police stated that Mr Williams (the Applicant) had received 2 penalty notices and 8 warnings since he was the licensee commencing towards the end of 2017. The submission expresses concern about attendance of Outlaw Motorcycle Gangs (OMCG) and the potential for criminal activity. It is said that Mr Williams has a poor compliance history, Police having attended and found breaches of legislation on 3 occasions. 3. The Police submission expresses concern that the nature of the patron who attends a strip club is more likely to lead to breaches by the licensee and poor behaviour from patrons compared to a restaurant or night club. 4. Sergeant Claxton gave oral evidence. He had served in the licensing section of Kings Cross Police from September 2017 but had relocated in May 2021. When put to him in cross-examination that the operation of a strip club is no more dangerous than any restaurant, he disagreed and said there is a far greater prevalence of dangerous people with significant criminal background at a strip club than at other licensed premises. 5. Sergeant Claxton did not otherwise add in any significant way to the submission which had been made by NSW Police. He did concede that there were a variety of powers which NSW Police could exercise to deal with habitual offenders and OMCG members. Evidence - submitters 1. One local resident made a written objection upon notification of the DA. The name and address of the objector were withheld by the Council. The objection referred to "dubious men" and that the street can be very noisy "when the Dollhouse closes at 3am". 2. There is little weight to be attributed to such a submission when the address of the submitter is not known and the complaint is somewhat broad in nature. One can readily accept, however, that there is the real potential for noise to disturb residents whena premises close in the early hours and a significant number of patrons leave at about the same time. Such is well known. 3. The principal of the corporate owner of 13-15 Kellett Street, and the adjoining building 17 Kellett Street provided a letter addressed "To whom it may concern" dated 14 October 2020 which the Applicant tendered. The author said that the residential tenants happily co-exist with the Dollhouse and he has not had a complaint from the tenants in 30 years of property ownership. He described this part of Kellett Street as a "delightful and sophisticated entertainment area". 4. The letter was plainly requested by the Applicant, presumably for the purposes of these proceedings although the author does not acknowledge as such. It should also be observed that the author has a financial interest in the success of the Dollhouse as a tenant, so that it has the capacity to continue to pay rent. 5. It is difficult to draw many conclusions from the letter, because the financial arrangements between the landlord and the residential tenants is not known for one thing. That is, the rent may be reduced because of the proximity of the strip club, or there may be other considerations which have led to no complaints having been made. 6. I accept the letter is written with honest intent, but in the absence of further interrogation of facts, it is difficult to give it a great deal of weight. It should be remembered though that there is only one resident who lodged an objection to the DA. 7. There was no oral evidence from any objector or supporter. Planning evidence 1. Planning evidence was given by Mr D Rippingill, retained by the Applicant, and Mr M Girvan a Senior Planner of the Council. The planners provided a joint report (Planners JR) and a supplementary joint report (Planners Supp JR). The planners were not required to give oral evidence. 2. In relation to the first issue, Mr Rippingill said in the Planners JR "…. the specific control cited by Council was not raised in a single submission, the area has a long history as a red-light district and consequently there would be no reasonable expectation that living in Kings Cross would mean separation from those land uses. 15. …. Mr Girvin's approach .. that compliance with the objectives of the zone are only achieved via compliance with specific development controls is not correct. That is particularly so in the context of a B4 Mixed Use Zone where both residential and restricted premises are permitted together in a medium density environment. In this context, the control acts as a defacto prohibition and is therefore inconsistent with the LEP. For this reason it should not be observed, and for the fact that the operation has had no unacceptable adverse impact on the amenity of the area, such that compliance is unnecessary. 16. With regard to the compatibility or otherwise with surrounding land uses and the specific location in which those premises might be permitted, [there is no] basis from a town planning perspective why an "adult entertainment premises" would be prohibited in the same building or adjoining a residential dwelling. .. there is no prohibition on high impact, late trading land uses such as pubs or entertainment facilities from being in the same building or opposite residential land uses. The type of entertainment proposed results in no higher acoustic impact that a restaurant or bar providing entertainment. … The objectives of the zone can be achieved without land use separation." 1. Mr Girvan said in the Planners JR about the first issue: "31. The locality controls of the DCP were prepared in order to meet the objectives of the controls in relation to (a) addressing the health and safety of staff and visitors, (b) minimising adverse impacts that may be generated by the premises, and (c) ensuring high levels of internal and external amenity. The presence of the DCP controls is recognition that premises of this nature in sub-optimal localities have potential impacts where the objectives of the controls are unlikely to be met. 32. …. I refer to the information provided within the submissions by NSW Police to assist me in concluding that the use of the site as a restricted premises (adult entertainment premises) is a high risk land use with the potential to result in undesirable adverse impacts to neighbouring residential uses including crime, drug use, indecent conduct, and/or violence. I disagree that these impacts are the same impacts that would occur by the approved use of the site as a restaurant and bar." 1. As to the second issue, Mr Ripppingill said in the Planners JR: "45. … approval of the Application would not materially change the character of the area, which has a history and existing character as a red-light district. There is no specific control that seeks to change the existing character of Kings Cross. … the objectives of the controls to reduce impacts associated with the clustering of these premises would not be achieved by the refusal of the Application. There are no other "adult entertainment premises" within 75 metres. Whilst there are sex services premises, their trade as far as it might impact directly on residents is very different or imperceptible. That is a relevant consideration as to impacts and whether the controls should be enforced. Sex services premises trade with low numbers of patrons that attend alone. Moral considerations of such land uses are not a town planning matter ... 46. Impacts on adjoining residents can be managed as they would be for any late trading premises, as they have been and as they would be for a 24 hour nightclub. 47. [I do not agree] .. that the town planning controls around proliferation are responsible for the reduction in sex service premises and adult entertainment premises in Kings Cross. There have been even more licensed and entertainment premises close as a consequence of Liquor Act changes such as the 1am lockout and 3am shutdown. Community expectations of the character of the area have not changed so significantly in this time that it is reasonable to argue that the controls should apply equally in Kings Cross as Rushcutters Bay. … other consents have been issued by the Respondent with residential premises within 75 metres." 1. On the other hand Mr Girvan said in the Planners JR: "49. The DCP control requires a 75m radius from an existing premises to restrict the proliferation of adult entertainment or sex industry premises and the cumulative impacts of locating premises near each other in the given locality. … 52. … since 2006 new adult entertainment and sex industry premises within the Kings Cross Precinct were subject to the requirement to be 75 metres from other existing adult entertainment and sex industry premises. The radius applies equally regardless as to whether the other premises are the same type of use (in this case adult entertainment premises) or another type of sex industry premises. 53. This change to the planning controls reflects the desired future character of Kings Cross was not to continue as a red light district to avoid the impacts associated with these premises ….. The character of the area is going through a transition. Over time, the character of the area has changed including providing an increasing proportion of residential land uses and a decrease in adult entertainment and sex industry premises. 54. The continued adoption of the control within Council's planning policies demonstrates continued community support to the anti-clustering of adult entertainment premises and sex industry premises. Council's planning controls reflect the community's expectations regarding the appropriate siting of adult entertainment and sex industry premises so as not to alter the character and amenity of any particular area. Locating multiple adult entertainment or sex industry premises in close proximity creates an undesirable character of the street, particularly where residential land use dominates. 55. The premises at 48 Kellett Street (48 Angels Massage) and 50 Kellett Street (At Michelles) are in particularly close proximity as they are located diagonally opposite the subject site in the same street and the entrances are visible from each other. The premises at premises at 20-22 Kellett Street (Maggies) is located on the edge of 75m radius and outside of the visual catchment of the entrance to the site. All of these premises are likely to share a similar customer base with the proposal." 1. The Planners supp JR dealt with the schedule of COPS records to which I have referred. The areas of difference between the experts were: * Mr Girvan considered that evidence of drug use by patrons was a matter adverse to the Applicant and Mr Rippingill did not. * Mr Rippingill considered the fact of Police being called was evidence of good management whereas Mr Girvan considered it generally reflected a failure in management. * Mr Girvan considered that where a patron after leaving the premises engaged in anti-social behaviour it was a poor reflection on the Applicant whereas Mr Rippingill considered it unrelated to the premises. Submissions 1. The advocates for the parties provided very helpful written and oral submissions. I do not intend to do their submissions a disservice by summarising them in the following manner. 2. The Applicant submitted that: * There is no evidence that the premises will present a higher crime risk, impact to external amenity or other discernible matter as compared to the approved operation of a bar and restaurant, operating 24 hours and providing live entertainment. * The evidence is that: 1. the plan of management is appropriate; 2. the number of historical incidents are limited and relatively minor in relation to the operation of a late trading licensed premises; and 3. there is no correlation between the operation of the bar and restaurant (with nude or semi-nude dancing) with nearby sex services premises so as to create a cluster or perceived red light area. * The applicant proposes a less intense form of development than what is already approved as licensed premises. Particularly, the Applicant will accept: 1. Closing at 4am as a condition of consent where the existing approvals permit 24 hour trading; 2. A reduction of patrons from 270 to 150 patrons and 30 performers and entertainers; 3. A plan of management that will guide the premises for management of potential amenity impacts whereas there the existing bar and restaurant does not. * Even when considering the Council's location control in its DCP, the DA is appropriate. The objectives of the location control are complied with – there is no evidence of unacceptable amenity impacts or apparent change to the character of the locality. The Respondent has been unable to identify the specific harm they are seeking to avoid through enforcement of the locality controls that differs from the existing late trading entertainment premises. * The impact is commensurate with a small bar, and the incidents are isolated and do not lead to the conclusion of poor management. * It is not a suburban area and the proposed use will not effect a change in the character of the area. There is no apparent interaction between the patrons of the premises and the sex services premises nearby. The objectives of the control do not refer to protection of the character of the area. * Further, the Court must consider what are the additional impact of the proposed development as compared to the already approved uses. As set out earlier, there exists a lawful use which the Court may have regard to in terms of its possible amenity impacts. * The objective of the control has been met as there will not be: 1. clustering with premises that offer nude or semi-nude dancing; 2. any additional unacceptable amenity impacts; 3. any intensification of any perceived red-light district. 1. The Council submitted on the principal issues that: * Mr Girvan's opinion as to compatibility together with the evidence provided by the Police leads to finding that the use of the Premises in that locality is not compatible with the surrounding land uses and is therefore contrary to the first B4 zone objective (to provide a mixture of compatible land uses), having regard to the preponderance of residential uses in the immediate proximity of the premises. * There are potential adverse impacts including noise of patrons and poor patron behaviour within and outside the premises. * There is a breach of the DCP locality controls that are both unjustified and do not result in a better planning outcome. * The anti-clustering control in relation to proximity to other adult entertainment or sex premises serves to prohibit the presence of the proposed use in its current location. * The control serves to limit the proliferation of adult entertainment and sex service premises and the cumulative impacts on the locality of the clustering of such premises. The continued application of the control throughout Kings Cross reflects a desire that the future character of Kings Cross not be a red-light district. * The controls serve a purpose not only to control impacts on the surrounding area from particular uses, but also to have a strategic impact on the desired future character of an area. The controls against the clustering of such premises serve this purpose and have been employed to do so in this area since at least 2006. * The COPS records show a number of serious failures of management, including failure to adhere to the health legislation and the number of times Police involvement was necessary. Consideration 1. An observation needs to be made at the outset. The Applicant makes this DA without admission that it requires a further DA to carry on the activities the subject of this DA. But it is not open to this Court in these proceedings to determine whether or not development consent is required. The DA has been made to the Council and an appeal made to this Court and the Court is confined to dealing with the DA before it. 2. If the Applicant wished to have a binding determination as to whether the existing instruments of consent permitted the proposed activities then proceedings in Class 4 of the Court's jurisdiction would have been the appropriate course. 3. That said, the Order appeal concerns whether or not the existing instruments of approval permit the activities the subject of the Order. However, the determination of that appeal, if required, is the exercise of a specific power by a Commissioner of the Court and is likely not to be the final determination of the scope of the existing instruments in any event. 4. In considering the DA there was an initial appeal to the proposition that the scope of the present approvals was required to be understood so that a comparison of impacts of what was authorised and what was proposed could be made. Implicit in that comparison, indeed as opined by the Applicant's planner, was the assertion that if the impacts of what was proposed were less than what is presently authorised then consent to the DA should be granted. 5. I do not consider that that is an appropriate way to approach the assessment of the DA. The existing activities are informative of the impacts of the conduct of the premises hitherto, regardless of their lawfulness. But that analysis does not extend to applying a principle that if the impacts of what is proposed are less than that which is authorised then what is proposed is acceptable. In my view there is no such principle. The DA must be assessed on its own merits, without regard to whether or not it has more or less impacts than a present authorised use. 6. For the purposes of the assessment of the DA it is therefore not necessary to decide whether the present activities at the premises are authorised by the existing consents or approvals. Nor should it be assumed that, for the purpose of understanding the character of Kellett Street that the existing use is lawful – that is, the Applicant cannot both assert that development consent is required for a use by making a development application (even without admission) and at the same time assert that the present use which is the type of use for which consent is sought should be considered in assessing the character of Kellett Street. 7. The assumption made in the assessment of the DA is that the development for which approval is sought is not presently authorised to be carried out. However, it is appropriate to consider the use which the Council considers is authorised for the purpose of understanding the character of this part of Kellett Street, insofar as the uses are concerned. 8. The Council accepts that the premises has development consents which authorise a restaurant with bar, with the provision of entertainment limited to a vocalist and pianist (without ampliofication). The premises may trade 24 hours daily, but the entertainment can only be provided from 7.30pm to 3am the following day. The maximum capacity of the premises was in the order of 240 patrons plus staff. (The Applicant also accepts as much although he says that there is no limitation on the type of entertainment which can be provided.) 9. It is appropriate that I now make observations about: * The differing nature of the uses in Kellett Street and their contribution to its character, including the proposed use; and * The conclusion to be drawn from the COPS records. Character 1. The west side of Kellett street, from the "bend" to the site has 4 restaurant/bars with capacity of 50-98 patrons and closing times varying from 11pm to 3am. The subject premises, the most easterly of the strip of restaurants, had the benefit of 24-hour trading as a restaurant and bar, and a significantly greater capacity than the others. 2. There was some debate, and submissions made, about the comparative nature of the proposed premises. In a sense its nature is a significant factor in the determination of the appeal. The Applicant submitted that it is no different to a small bar, but its comparison to a restaurant was scotched by Sgt Claxton. Comparisons were also made to nightclubs. There was no empirical or other evidence led by either party to assist in determining the comparative nature of the clientele and the range of licensed premises which exist in Kings Cross. 3. The Applicant pointed to the conclusion of Martin SC in Cirillo at paragraph [99] wherein she accepted the evidence in that case of Prof Ryan which was that: "We don't have any evidence to suggest at all that men who use strip clubs have any particular profile that's different from the general population either in terms of their propensity for crime or their propensity to create amenity impacts either inside a premises or outside a premises." 1. Of course, such a conclusion or finding is not binding on this Court, particularly as it is a finding based on the specific evidence in that case. Care also must be taken to understand what was said – it is concerned with the profile of the patron who attends, not necessarily an examination of the comparative impacts of premises. The then Senior Commissioner said that any impacts "may arise from the service of alcohol rather than anything else", itself an inconclusive comment. 2. At [101] Martin SC said: "I adopt the language of Professor Ryan, and find that the evidence that people who attend a strip club are more or less likely to create amenity impacts, commit crimes or be unsavoury characters, is simply not there. Accordingly, there is no such ground to warrant refusal of the application." 1. I repeat that the observations of the then Senior Commissioner are based upon the evidence before her and not a statement of planning principle or general application, and not binding on another Commissioner of the Court. I can also add that the then Senior Commissioner was not considering the character of an area. 2. The comparison between types of licensed premises is largely a matter of common sense. A restaurant has as its focus the supply of meals, generally in a convivial atmosphere where liquor is available and consumed probably by the majority of patrons. The focus of a bar (not part of a hotel) usually is not the provision of food or meals but the consumption of alcohol in the company of others, as a social and convivial outing. The bar patron is there to enjoy the company of others whilst for the most part drinking alcohol in (hopefully) moderation. It is a meeting place. 3. The addition of entertainment adds another dimension to a premises. Entertainment varies from live entertainment as an accompaniment to the socialising, to entertainment becoming the focus of the patron at the premises, the reason to come to the premises, be that a band or in this case adult entertainment. 4. It is somewhat simplistic to categorise uses by their potential for impacts, but it is generally accepted that of the range of licensed premises restaurants are the least likely to cause impacts. However, it is difficult to assume that a strip club is more likely to engender impacts than, for example, a popular and rowdy bar. The acoustic impact of the music associated with a strip club is regulated by the requirement to comply with noise criteria, the question arises as to whether the interest and excitement generated by the adult entertainment itself results in a greater propensity to create an impact outside the premises. 5. It is important not to equate an impact with anti-social behaviour. That is, an impact such as the noise of a person speaking loudly in the street, or calling out a farewell, is not usually anti-social conduct. Such conduct can occur in the normal course of human endeavour, and may be careless but is not necessarily anti-social behaviour. It nevertheless may be an unacceptable impact from the operation of premises. 6. The capacity of premises also contributes to the character. Large premises can create a character of their own, but more importantly, the greater the number of patrons at a premises the more likely it is that there will be an external disturbance. That is an obvious proposition, not simply because there is a larger pool of people from which the likelihood of a miscreant is therefore greater, but also that larger groups in public places are noisier than smaller groups. Conversations occur amongst a larger group, transmitting sound further, and sometimes people need to speak louder to make themselves heard over others. 7. The character then of Kellett Street in terms of its assumed uses is of restaurants and bars, without entertainment for the most part, other than the piano and vocalist at the subject premises which it can safely be assumed is part of the ambience rather than the focus of the premises. 8. Other than the subject premises the total number of patrons is below 100 and they depart the area over a period of 3 to 4 hours, other than from the subject premises where the departure will be more spasmodic, and likely to be similar to the late trading restaurant at 7 Kellett Street. 9. The character includes considerable residential uses and so it is assumed that there is some moderation in the behaviour of patrons of the restaurants and bars after they have left the premises although it is likely there is for residents a consciousness of people in the street and regular audible noise. Such is to be expected in this location, at least not to an unreasonable level. COPS records 1. The Council accepted that it would not rely upon the patron drug use findings to assert poor management of the premises. That is appropriate. It is a fact of life that some people choose to use illicit drugs, and that they will do so as part of their social outings wherever that may be. The difficulty comes in circumstances where the patron drug use or possession becomes so frequent that it demonstrates a breakdown in management or simply a deliberate turning of a "blind eye" to drug use by patrons, or worse, the facilitation of supply in premises. 2. Whilst the number of drug related matters is not insignificant, there is not a frequency or pattern which suggests that the management of premises are facilitating or ignoring the drug use at the premises. There was one incident where a staff member may have been involved but that appears to be a one-off event and was not repeated. 3. The Police, and Sgt Claxton, expressed concern about the premises being attractive to, and frequented by, members of OMCG. There was certainly one occurrence in January 2020, but measures were required by the Police to be put in place at the premises and that was done. There does not appear to have been a repeat of such an occurrence. On the basis of the material before the Court I cannot conclude that there is likely to be criminal activity at the premises because of the provision of adult entertainment. 4. There are a number of events in the past 4 years or so, which have demonstrated a lack of attention to management, particularly the public health breaches. The consequential impact on the health of patrons can be catastrophic but there was no apparent external impacts of the health related breaches. 5. The other failures where Police were required to attend were not frequent and the public disturbance limited. Indeed, for the most part the Police noted failures or were prompted to issue warnings or breaches were during business inspections or attending at the request of the Applicant. 6. Patrons touching entertainers is unacceptable and measures must be in place to minimise the possibility of it occurring. It has occurred on a small number of occasions insofar as the Police records show, and I cannot conclude that it is a practice generally condoned by the Applicant. 7. I conclude that the COPS records demonstrate that there are issues from time to time with the management of the premises, but not such as to conclude that it is not possible to properly manage the premises. It should be recalled that there has not been a robust plan of management in place to date and that the Council is satisfied with the proposed plan of management which will regulate the day to day operation of the premises in the future. 8. Of course, no matter how well managed premises may be, there is still the potential for impacts and the use may not be compatible with its location. The behaviour of patrons after they leave premises is not capable of absolute control. It is however the responsibility of premises to conduct their operation in such a way so as to reduce the likelihood of an unacceptable external impact to a satisfactory level. Compatibility with residential uses 1. The relevant objective of the B4 zone is to provide a mixture of compatible uses. As set out above section 4.4.6.1 provides that an adult entertainment premises must not be located within buildings containing a residential use, immediately adjacent or directly opposite a residential use. 2. The premises meet all 3 criteria – residences above, beside and opposite the premises. A plain and simple non-compliance with the control. 3. The relevant objectives of the control is said by Mr Girvan to be to minimise adverse impacts and to ensure high levels of internal and external amenity. These objectives apply both to adult entertainment and sex services premises. 4. Curiously, there is another objective which applies only to sex service premises: "Ensure sex services do not interfere with the amenity of the neighbourhood." 1. It is not entirely clear to what the objective about ensuring "high levels of internal and external amenity" refers. Having regard to the separate provisions about amenity, it appears to me to refer to the amenity of the premises the subject of an application – both the indoor and outdoor elements of the premises. The objectives also apply to the design of premises which reinforces that conclusion. 2. And so the relevant objective of the control in SDCP 2012 is to minimise the adverse impacts of restricted premises. That objective is contrasted with the objective for sex service premises not to interfere with the amenity of the neighbourhood. Minimisation, not elimination is the objective. If that is achieved then the use can be said to be compatible with the surrounding uses. 3. Whilst the argument may have been faintly made by the Council, I do not accept that the nature of the use itself is a reason to consider the use incompatible with the residential uses or otherwise unacceptable because of this control. The focus of the objective is on actual impacts, the external manifestation of the use, not simply the notion of a strip club adjacent to residential premises. 4. The proper approach to the zone objectives made clear recently by Preston CJ in Jeffrey v Canterbury Bankstown Council [2021] NSWLEC 73 means that the proposed use is to be expected in some form at the site and the question is one of impact. The control in SDCP 2012 does not operate as an absolute prohibition, but provides controls intended to meet the objectives of the control, and indeed, the relevant objective of the zone of compatibility. 5. The evidence of the impacts of the present use is sparse. The Applicant has not sought to demonstrate from its own records, nor through giving evidence, that there have been little or no impacts from the existing operation. The Council has sought to rely upon the Police records and evidence. Initially Mr Girvan relied upon a more extensive demonstration of poor management and likely impacts when the premises were operated by a different licensee. The Council, and Mr Girvan, now accept that the relevant period for assessment is the period since the Applicant assumed control of the premises in late 2017. 6. In considering the COPS records the Court is also limited because whilst it has been provided with the information as to when the premises were closed due to the pandemic, the Applicant has not provided the Court with evidence of the days and hours it traded and the number of patrons present during trading hours. 7. It seems to me that the proposed use is capable of being compatible with the residential uses nearby and the impacts minimised to an acceptable level. The conditions which give effect to that capability will be dealt with later. 8. The adult entertainment itself will not be visible from the public domain. There will be no acoustic impact as the Council accepts that the usual acoustic condition can be complied with. The question is whether the patrons arriving or leaving the premises will cause any form of disruption, having regard to the other restaurant/bar uses and the approved restaurant use at the site, and the numbers of patrons. 9. Subject to the conditions to which I will come, there is no evidence that there is an inherent likelihood that patrons arriving or leaving a strip club will necessarily be more likely to cause a disturbance than patrons of a lively bar. Whilst I am not sufficiently satisfied on the evidence that there will not be disturbance in the hours and numbers of patrons proposed by the Applicant to grant an unconditional consent, I would not refuse the DA on the basis of non-compliance with this particular control because the proposal has the capacity to meet its objectives. Location control 1. The premises are within 75m of 3 approved sex services premises – 2 on the opposite side of Kellett Street and one further around Kellett Street, not visible from the site. There is a clear breach of the control in section 4.4.6.1(iii)/(d) of SDCP 2012. 2. This location control has the same objective as the previous control. It is said by Mr Girvan, though, that the objectives include to avoid the clustering of premises and thereby avoid creating an undesirable character and an unacceptable cumulative amenity impact. 3. I accept that the objective to minimise impacts includes minimising any impact caused by clustering of premises, including a change in character. 4. The Applicant argues that there are no other adult entertainment premises within 75m and that there is no evidence of interaction between the premises and the sex services premises. Therefore, he submits that there is no clustering and no evidence of impacts from the co-existence of the 3 nearby premises hitherto. 5. Care must be taken not to depart from the provisions of SDCP 2012 in this regard. That is, the clustering sought to be avoided is of both adult entertainment venues and sex services premises. It is not appropriate to limit consideration to adult entertainment venues and conclude there is no clustering. 6. The question of clustering is not the end of the enquiry but rather simply a step along the way – the real question is whether the 3 premises in the identified proximity create or cause a change in character of this part of Kellett Street, or increase the prospect of amenity impacts to an unreasonable level. 7. There was no evidence from the Police that there is an association of use between the premises and the sex services premises. That is, it was not suggested that there was movement between premises which has caused issues in the past. Whilst that remains a possibility, and perhaps there is some inevitability of its occurrence, I cannot presently conclude it will occur with any regularity. Mr Girvan says that the sex services premises are likely to share a similar customer base as those attending the premises, but it is not an opinion based on other than informed speculation, and not supported by evidence. 8. Mr Girvan does not say that there is an impact consequence, but that possibility of common clientele contributes to the change in character. 9. The real question is the character. Will the approval of the DA lead to the impact of a change in character from the present eclectic uses including the sex services premises and restaurants/bars to an undesirable character reflective of a "red light district"? 10. In my opinion, subject to the conditions to which I will come, I do not think so. The sex services premises are very discrete in their appearance, have little outward appearance of their function and appear, other than to those who know the services being offered, to contribute little to the notion of a "red light" district. 11. The proposed premises are on the other side of the road, at the end of a line of restaurants/bars, other than the intervening adjacent residence to the west. The premises should appear much the same as the restaurants/bars other than there will be no external seating or patrons on the front verandah. 12. Whilst I accept it is finely balanced, subject to conditions, I consider that the proposed use meets the objectives of the control in that the impacts are minimised. The addition of this type of use does not change the character in my opinion, given there are only two relevant sex services premises and this is the third use, which is different in character. The assessment must be made having regard to the physical context of the premises and that is critical in this case. The "concentration" is notional rather than real. I do not consider the street will be perceived as part of a "red light" district.. Hours and conditions 1. My conclusions above rely upon the conditions to be imposed including hours of operation and numbers of patrons and a trial period. 2. I raised the question of trial period with the parties during the hearing. It is convenient to recall the task required when assessing an application which includes the consideration of a trial period. The power to grant consent for a 'trial period' is an exercise of the power in s 4.17(1)(d) of the EP&A Act to limit the period during which development may be carried out in accordance with the consent so granted. 3. In the seminal case (for other reasons) of Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 (Zhang), Spigelman CJ said the following: "80 I do not accept Talbot J's characterisation of the Commissioner's decision as having "effectively postponed determination of an essential matter for one year". As I understand the Commissioner's decision, he was not satisfied that the likely impact was such that an unlimited consent should be given. He was satisfied that the likely impact during a period of twelve months was such that a consent for that period should be given. This involved an assessment of the merits which was open to him. There was no error of law in this respect. ….. 83 I do not see any necessary incompatibility between the imposition of a condition limiting a proposed use to a probationary or trial period and the statutory requirement that the decision maker "take into consideration" both the "likely impact of the development" and "the suitability of the site for the development". It is possible to "take into consideration" matters even though their full significance cannot be known with precision. 84 Where, as in this case, the nature of the development application is for the "use" of existing premises - and, accordingly, adverse effects are readily reversible - a probationary or trial period may be an appropriate exercise of the statutory discretion." 1. The words of Spigelman CJ are apposite here. The assessment in this case is made based upon, amongst other things, an expectation of human behaviour. Whilst human behaviour is generally predictable, there is no certainty about such a prediction, and in my opinion a trial period as to hours of operation and number of patrons is necessary if development consent is to be granted because the full significance of the DA cannot be 'known with precision'. 2. It is not, however, the case that a trial period is simply a 'suck it and see' approach. The assessment is made on the basis that it is likely that the impacts are acceptable for a period of 12 months, noting that the impacts are reversible, in the sense observed in Zhang, that the impacts, if any, will cease at the end of the 12 month period. 3. There is also the need to be satisfied that the premises are capable of being managed appropriately. A trial period for late trading hours in particular enables satisfaction, or otherwise, that the premises can be managed so as to properly minimise impacts. 4. In terms of character and the reasonable expectation of some impacts in this location and zone, the other hours of trade and capacity of the nearby premises are the most informative. Whilst the proposed hours exceed those provided for in SDCP 2012, the objective of the hours control is to minimise impacts, especially those impacts on residents. 5. Only 2 of the nearby premises trade past midnight. "Deans" at 7 Kellett Street trades past midnight only on Friday and Saturday nights, until 3am the following day. It has a capacity of 92 patrons. "Caffe Roma" at 9 Kellett Street trades until 2am the following day Monday to Friday and until 2.30am the following day on Saturday nights. Sunday trading is until midnight. The capacity is 50 patrons. 6. It should also not be forgotten that the premises has the benefit of 24 hour trading as a restaurant/bar with a capacity of over 200 patrons. I repeat however that the Applicant has not provided any evidence as to its actual patronage during any period and its actual hours of trade. Whilst the same could be said of the other restaurant/bars, they are of significantly less capacity and given that they are still trading at this time having endured the pandemic, it is safe to assume that they have generally traded approaching capacity for much of the time in recent years when permitted to do so. 7. It seems to me that for the preceding reasons and those which follow, the number of patrons should be limited to 100 after midnight and that trading after midnight should be limited to 3am on any day. Both constraints ought be on a trial basis for 12 months. 8. First, no other premises trades after 3am, and so the movement of patrons ceases other than from the subject premises. It is reasonable in this location that there be activity up to 3am, but in my opinion there is likely to be impacts from the premises with up to 150, or even 100 patrons leaving at 4am. It is not a reasonable expectation that there be such activity at 4am in this residential context. 9. Second, I am not convinced sufficiently to allow extended hours permanently, that patrons leaving premises, which have provided entertainment, are not more likely to be more exuberant than those leaving premises which do not provide entertainment, and so may cause disturbance, without engaging in criminal or anti-social behaviour. 10. To me it is common sense that the purpose of entertainment is to entertain – to heighten enjoyment, to give pleasure and delight, to lift the spirit. If that purpose is fulfilled, as would be the Applicant's intention, then the patrons leaving may well be high-spirited and less cognisant of their immediate surrounds and so the potential for disturbing residents is increased. 11. Third, the sheer number of patrons who may be leaving, even if over a period of an hour or two, is significantly more than at the other premises. It is true that the premises have authority to cater for a greater number, but in assessing this application I do not consider that there is a justification for the maximum number of patrons proposed by the Applicant to be accommodated after midnight, having regard to the nature of the use Conclusion 1. It follows that I consider development may be granted subject to conditions. It will be necessary for the parties to redraft the conditions to take account of the hours, numbers of patrons and trial period I have decided is appropriate. I will make orders in chambers after the conditions are provided. 2. I therefore make the following direction: 1. The parties shall within 2 business days file agreed conditions reflecting these reasons for judgment. ……………………….. P Clay Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2021