> Land and Environment Court of New South Wales CITATION : Calligatron Pty Ltd v North Sydney Council [2003] NSWLEC 413 APPLICANT Calligatron Pty Ltd PARTIES : RESPONDENT North Sydney Council FILE NUMBER(S) : 10526 of 2003 CORAM: Brown C KEY ISSUES: Development Application :- Use of premises for a hotel - noise - security personnel - lighting - security cameras - hours of operation - patronage numbers LEGISLATION CITED: Environmental Planning and Assessment Act 1979 North Sydney Local Environmental Plan 2001 CASES CITED: DATES OF HEARING: 20 - 21/10/2003 EX TEMPORE JUDGMENT DATE : 10/21/2003 APPLICANT Mr D Wilson, barrister SOLICITORS LAS Legal LEGAL REPRESENTATIVES: RESPONDENT Ms E Duenow, solilcitor SOLICITORS Mallesons Stephen Jaques JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10526 of 2003 Brown C 9 December 2003 Calligatron Pty Limited Applicant v North Sydney Council Respondent Judgment Introduction 1 This is an appeal against the refusal by North Sydney Council for the use of the premises at unit 7, 83 Mount Street, North Sydney, for a hotel tavern. 2 83 Mount Street is a multi storey commercial building containing three basement levels of carparking, a two storeyed podium and a tower of 13 floors plus a plant room level. The building faces Mount Street and Elizabeth Place and is in close proximity to the closed section of Mount Street near the Pacific Highway. 3 The proposal generally seeks to use the configuration of the previous use of the premises as a restaurant with some minor modifications including an extension of the glass balustrade area on the terrace. 4 The proposed use is permissible with consent within the commercial zone under North Sydney Local Environmental Plan 2001 (LEP 2001). It is not subject of any specific controls under LEP 2001 or any other council planning instrument. 5 The council filed a Statement of Issues containing 11 separate issues and a number of sub issues. However, following discussions prior to the hearing a number of agreements were reached between the parties. Following these agreements the proceedings were conducted on the basis of the applicant's disagreement with a number of the conditions sought to be imposed by the council. The areas of dispute involve the following areas:- 1. Noise levels. 2. Hours of operations. 3. The 2 am lockout. 4. Lighting and surveillance cameras. 5. Patron numbers, and 6. The number of security personnel. 6 Fundamental to these matters was a disagreement between the parties over the question of whether a number of the areas of dispute were more appropriate as conditions of consent or contained within a Plan of Management that requires compliance through a specific condition of consent. In relation to this, Mr Wilson, the applicant's advocate, submitted that the strength of the conditions is not diminished if placed in a Plan of Management and referenced by way of a condition of consent. I accept this submission so it is not necessary for the matters in the Plan of Management to be replicated as specific conditions of consent. 7 For convenience I will refer to the areas of dispute by the council's original condition numbers. There was agreement on the appropriate noise emission controls or levels although it was submitted by the council that the controls should be extended to include the commercial tenancies in the subject building. As this was not a matter agreed to in the joint statement of the acoustical experts, the additional requirement should be deleted. Also the reference to the words "noise nuisance" in the council's suggested changes to the Management Plan should be deleted as the other noise control measures are adequate and more easily monitored. 8 Condition I1 deals with the hours of operation. The applicant originally sought 24 hour trading, however accepted the hours proposed by the council; these being 7 am to midnight Monday, Tuesday, Wednesday, 7 am to 3 am Thursday, Friday, Saturday and 10 am to midnight on Sundays. 9 Condition I2 requires that no person shall be admitted entrance to the premises after 2am. The applicant submitted that there is no justification for the 2 am lockout. To support the inclusion of this condition the council provided evidence from sergeant Stephen Fowler from the Harbourside Local Area Command. He stated that while no other hotel in the area had a similar requirement, the implementation of the lockout in the Manly area had resulted in a reduction in alcohol related crimes. In accepting the conclusions of Sergeant Fowler that the 2am lockout may decrease alcohol related crime, its effectiveness in this location would be limited if it is applied only to the subject premises and not the other hotels in the immediate area. In my view, it would be unreasonable to impose this condition at the present time, although it would be appropriate for it to be reviewed after 12 months of operation. 10 Conditions 15 and 16 relate to lighting and surveillance cameras. The council conditions were opposed by the applicant as it may not be possible to satisfy the requirements if approval from the owner's corporation of the building is not forthcoming. The applicant proposed an amendment that is contingent on this consent being obtained. I accept the applicant's amendment as it would be unsound to require the work to be carried out without the necessary approval. I am however, aware that security and lighting was a specific issue raised by the owner's corporation when they commented on the application. 11 Condition 19 restricts patron numbers to 100. This is opposed by the applicant who submits that 150 patrons can be accommodated within the premises. Evidence for the council in this issue was provided by Mr Alan White, the Executive Assessment Officer-Fire Safety, with the council, and for the applicant by Mr Anthony Protos, a building regulation consultant. Mr White explained that the limit of 100 patrons was based on his assessment of the plans, the depiction of tables and chairs shown on the plans and also the possible occurrence that a number of the patrons may be under the influence of alcohol. In his view, these patrons may have greater difficulty in exiting the premises in time of fire. Mr Protos placed little weight on the depiction of the tables and chairs on the plans but based his patronage numbers on the capacity of the toilet facilities and the egress capacity as set out in the building in the Building Code of Australia (BCA). His evidence indicated that a patronage level of 200 could be achieved using the aggregate egress width. On this matter I prefer the evidence of Mr Protos as it is more closely based on the appropriate requirements of the BCA. 12 In terms of the number of security personnel, the council requires three staff on Thursday and Friday nights. The applicant proposes two staff on these nights, together with an extension to three staff on Friday nights after six months, by notice in writing from the Harbourside Local Area Command, again after submission from the hotel operator. Mr George Askew, the applicant's security adviser, admitted there is some difficulty in dealing with a number of the security matters without any specific experience of how the hotel will operate, including the type of clientele it will attract. I am inclined to agree, and in relation to the number of security personnel I intend to impose the applicant's two staff but with the requirement that the overall level of staffing for all nights, be reviewed after 12 months of operation. 13 For these reasons the appeal is upheld. However these findings require substantial amendment to the conditions and Plan of Management so prior to making formal orders I give the following directions: 1. The respondent is to file and serve the draft conditions based on the findings in this judgement by Friday 31 October 2003. 2. The applicant is to file and serve a new plan of management based on the findings in this judgment by Friday 31 October 2003. 3. The parties are to consult in the redrafting of these documents. 4. Leave is granted on a convenient date to restore the matter at 9.30 for a mention within 48 hours notice in the event of any disagreement. _________________________ G T Brown Commissioner of the Court ljr/nm/rjs 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.