Big Beat (Australia) Pty Ltd v Sydney City Council [2005] NSWLEC 306

Land and Environment Court of New South Wales

CITATION : Big Beat (Australia) Pty Ltd v Sydney City Council [2005] NSWLEC 306

APPLICANT Big Beat (Australia) Pty Ltd RESPONDENT PARTIES : Sydney City Council

FILE NUMBER(S) : 11355 of 2004

CORAM: Murrell C

KEY ISSUES: Development Application :- Restricted premises - late opening of pubs - security - streetscape - heritage items- public interest

Environmental Planning and Assessment Act Sydney City Council LEP LEGISLATION CITED: Central Sydney Local Environmental Plan 1996 Central Sydney Heritage Local Environmental Plan 2000

CASES CITED: Zang v Canterbury City Council [2001] NSWCA 167

DATES OF HEARING: 07/03/05, 17/03/05, 18/05/05, and 19/05/05

DATE OF JUDGMENT: 05/19/2005

APPLICANT Mr P Clay, barrister SOLICITORS Henry Davis York

LEGAL REPRESENTATIVES: RESPONDENT Mr C Legatt, barrister SOLICITORS Maddocks

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

19 May 2005

11355 of 2004 Big Beat (Australia) Pty Ltd v Sydney City Council

JUDGMENT

1 This is a verbal judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Sydney City Council's refusal of a development application for a cabaret lounge at the premises known as 37-41 Oxford Street, Darlinghurst. The council refused the development application on the basis that the proposal was not consistent with its heritage provisions or its controls in terms of the guidelines of the Development Control Plan concerning the concentration of late night venues, and the requirements in the council's opinion at that time, of the BCA were not satisfied by the proposed development. 2 The Court commenced this hearing in March, and following the conclusion of the hearing, the matter was re-opened because the applicant had gained the use of a second exit to the subject premises. When the matter was first heard by the Court there was only one emergency exit provided to Oxford Street. The Court allowed the re-opening of the matter and the applicant agreed to pay the respondent's costs with respect to its costs incurred from that point in time. The Court directed that the experts confer and that the matter be renotified/advertised in accordance with council's advertising notification policy, that objectors be advised. 3 The original advertisement of the use of the subject premises as a cabaret lounge was advertised, and there were some 15 objections, together with some 30 pro-forma letters received by the council. When the matter was re-advertised, there were four objections received. The nature of the objections was that the proposal would be a proliferation of late night venues in Oxford Street; it would impact on the amenity of many of the residential apartment buildings in the vicinity; and it would be a use that would create noise and traffic in the area as well. 4 Two tenants of the subject premises also wrote objections saying that the proposed use would conflict with their businesses that are operated at the first floor level in the commercial office component of the subject building. 5 The Court carried out a site inspection and also inspected the offices of the objections. It is noted that there is a shared foyer area that provides access to the proposed cabaret lounge and the upstairs offices. 6 During the proceedings it has been clarified as to what would be the opening hours of the subject development, and the council has reconsidered the matter, and now has stated an opening time of 5 pm through till midnight. And has also considered it appropriate for a 12 month trial period, if the Court was minded to grant consent, for 18 months from midnight till 4 am. Initially the council's condition was for an opening time of 8 am till 5 pm and clearly there was a conflict with uses within the building premises. However, in respect of this matter, with the opening hours as proposed for a trial period for the nightclub are from 8 pm to 4 am, whereas the restaurant would operate from 5 till 8 pm and it is considered in the Court's opinion, that little conflict would occur between the office uses and the operation of this part of the premises for a nightclub. Furthermore, there are specific conditions for security and management plans. 7 There were a number of outstanding issues when the matter was first heard about the fire exits and the number of persons on the subject premises. 8 The application is for the use of what was the former Commonwealth Bank, a local heritage listed item under council's Local Environmental Plan, and the application includes the construction of a mezzanine level and the use of this and chamber for the purposes of a cabaret lounge. There are also ancillary alterations to the building as well. 9 Because of the heritage listing of the subject building, there was a Court appointed expert to the proceedings, Mr Graham Brooks. The applicant also had a heritage architect, Mr Staas, who gave evidence to the proceedings yesterday, and at the beginning of the hearing, Mr Steven Davies, a heritage consultant also provided advice on behalf of the applicant as did Mr Fletcher, a consultant town planner. 10 For the council, Mr John Poulton, the heritage officer, gave evidence to the Court, and the Court also heard from Mr Munty and Mr Kelly, who are building surveyors with the Sydney City Council. And on behalf of the applicant, Mr Kilmartin, a consultant fire engineer and Mr Lilli, also a BCA consultant provided advice in the form of written statements and oral evidence to the Court. A joint statement which was provided today in respect of the egress and the fire requirements, and BCA requirements, was prepared jointly between Mr Kelly, Mr Kilmartin, Mr Lilli, and Mr Riley of Sydney City Council, Mr Kelly's manager. 11 The development application seeks approval for the cabaret lounge to accommodate 450 persons. During the discussions between the fire and BCA experts, it was agreed that the premises as shown on the amended plans, (that is with the two fire exits, one on the western side of the subject premises and one through the main doors to the traditional banking chamber) then the total number of patrons is considered to be 400 in terms of the experts' concurring, and conferencing, and 20 staff members. Such that there would be a maximum at any one time of 420 persons on the subject premises. 12 It was also agreed that the proposal is satisfactory in terms of BCA requirements and fire emergency evacuation, subject to a management plan to include an emergency evacuation plan. 13 The subject site is zoned under the Sydney City Council LEP, Central Sydney Local Environmental Plan 1996 as city fringe. And there are a number of objectives relating to that zone, which this Court has had regard to. 14 Other relevant provision that the Court must take into consideration, and I have given it central focus, as required by the authority of Zhang v Canterbury City Council [2001] NSWCA 167, is the Development Control Plan for the Central Sydney area. In particular there are provisions relating to special controls for certain uses, including amusement arcades, brothels, restricted premises, late opening pubs and the like. The subject development application falling into the latter category. It is noted that the preface to the special controls under 9 in the DCP states: "The development of amusement arcades, restricted premises, late opening pubs, is only permissible in the city centre and city edge zone, which is the subject zone, and the following provisions are required to ensure that these uses are located, designed and operated such that the use does not impact detrimentally on the general amenity and safety of the city, that being the overriding objective of that section in terms of the concentration of premises." 15 In council's bundle of documents there is a report from council's planner on the proposal and this proposal provides a map of the location of the premises and other establishments within the area of the subject site. On this matter the Court has had consideration to Mr Lindsay Fletcher's evidence in this matter, and I agree with his assessment where he says that: "In my opinion the context of the existing uses within Oxford Street, the well recognised role of the locality as an entertainment precinct, represent exceptional circumstances that apply to consideration of the current proposal". 16 I am also cognizant of the overall objective of this part of the Development Control Plan, which is to ensure that uses are located, designed and operated such that the use does not impact detrimentally on the general amenity and safety of the city." 17 And I am satisfied that with the development application as proposed with the security and management regime proposed, and the fact that an 18 month trial period is proposed for the subject premises for trading from midnight to 4 am that the provisions of council's Development Control Plan have been carefully considered, and I am satisfied that the proposed development will not be inconsistent with council's guidelines in terms of its Development Control Plan. 18 Furthermore, I must have regard to the fact that this is an adaptive re-use of a building. There will be no change to the streetscape. It will not be the introduction of a new use, such that it will not detract from the streetscape of Oxford Street. The Commonwealth Bank is a most important heritage element in the streetscape identified in council's heritage plan for the area. In this regard the Court must consider the heritage LEP, and the heritage LEP is the Central Sydney Heritage Local Environmental Plan 2000 that applies to the subject site. This relates to the heritage inventory assessment report which was contained within the bundle and also tendered as a separate exhibit. It means the relevant heritage assessment report in relation to a heritage item, or a building in a heritage streetscape prepared as part of the City of Sydney Cultural Heritage Database. (This was Exhibit 13 to the hearing, and also tab 6 of council's bundle). The controls of the heritage LEP include: "(a) The consent authority must not grant consent to a development application required by cl 7 unless it has taken into consideration the heritage significance of the item and of the heritage streetscape concerned.