Land and Environment Court of New South Wales CITATION : Balero Enterprises P/L v Sydney CC [2005] NSWLEC 351 APPLICANT Balero Enterprises Pty Limited PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 11347 of 2004 CORAM: Murrell C Development Application :- The extension of trading hours to allow the 24 hour operation of hotel - Amenity of surrounding area. KEY ISSUES: LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 8/4/2005 and 9/05/2005 DATE OF JUDGMENT: 06/16/2005 EX TEMPORE JUDGMENT DATE : 06/16/2005 APPLICANT Mr J. Webster, SC instructed by LAS Lawyers & Consultants LEGAL REPRESENTATIVES: RESPONDENT Mr S. Kondilios, solicitor of Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 16 June 2005 11347 of 2004 Balero Enterprises Pty Limited v Sydney City Council JUDGMENT 1 This is a judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against the City of Sydney Council's refusal of a development application to allow the extension of trading hours for the premises known as 1-5 Flinders Street, Surry Hills. 2 The application is for an extension of hours, to allow 24 hour trading and this equates to an additional four hours of trading per day. Currently, the premises have approval for trading between 7am and 3am. Therefore the extended period for a 24 hour licence, would include the hours between 3am and 7am. 3 The subject site at 1-5 Flinders Street is at the location of the intersection of four streets, known as Flinders, Bourke, Oxford and Campbell Streets. The premises, the Taylor Square Hotel, is commonly referred to as a 'day club' and identified by the sign 'T2'. 4 The subject site is located within what is generally described as an entertainment or night-time entertainment precinct. On the north side of the site between Oxford Street and the subject building is the Taylor Square pedestrian area where there is a raised area of land that is grassed, commonly referred to Gilligan's Island. To the south of the site are commercial and residential uses and to the west there is a large residential complex with ground floor retail. 5 The subject site is an old bank building and the operation of the hotel covers the basement and the ground and first floor. The upper level is not part of the hotel establishment. The premises have been operating since approximately 1994 when there was a consent granted for use as a restaurant and subsequently the approval was granted for a hotel. There is also gaming on the premises and there are 15 gaming machines. 6 The applicant is seeking a 24 hour licence and considers that this is consistent with many other premises in the area. The Court on the first occasion met on site and this commenced as an on site hearing. It was subsequently adjourned back to the Court and there was further evidence given by the Police Department. 7 On the site inspection, a number of local residents and/or objectors gave evidence to the Court and they expressed concerns about the anti-social behaviour emanating from the premises and considered that a 24 hour licence is inappropriate to grant to the subject premises. 8 The Court took an extensive walk around the area and noted the residential developments that have occurred in the vicinity, in particular to the south-west of the subject site. 9 The New South Wales Police gave evidence and the matter was adjourned to give the applicant the opportunity to subpoena various police documents. When the matter resumed in court, further evidence was given from the Police and there was the opportunity to cross-examine on the Police records provided by way of subpoena. 10 The applicant contends that the application should be approved as this provides the opportunity to demonstrate that the hotel can operate in an acceptable manner by virtue of the proposed management plan for the subject premises. A draft management plan was provided to the proceedings and the purpose of this plan, in the preface states: "1. Is to demonstrate the commitment of the hotel operators, management and staff to provide a quality hotel facility for the benefit of those members of the public who seek recreational, social options in the Taylor Square area during the early hours of the morning. 2. To operate the premises in a professional manner with due regard to the community, residents and visitors to the area, maintain the amenity of the area and neighbourhood, promote the safety of hotel staff, patrons and visitors to the area. Promote the character of the Taylor Square and Oxford Street strip as an attractive late night entertainment destination." 11 The evidence from the residents was that there has been anti-social behaviour in the area patrons leaving the premises has caused disturbance to residents. It is noted that the issue of noise emanating from the premises is not an issue in the proceedings, but rather the behaviour of patrons outside around the vicinity of the hotel. It was pointed out to the Court that there are acoustic measures in place to ensure that music does not create a disturbance. 12 It was submitted on behalf of the applicant that the approval of a 24 hour licence would allow the applicant to demonstrate that it can abide by the terms of the plan of management and it is noted that the records of the Police were the incident records. It is also noted that the hotel is what is known as a category 3 establishment from the Police records and a category 3 hotel is one where there have been more incidents reports than other establishments of categories 2 and 1. It is noted that many of the itemised matters are in fact incidents only do not necessarily mean that there has been any related conviction as such. 13 On behalf of the applicant, the questions were posed to New South Wales Police that the management plan will now provide for appropriate monitoring of the premises and it is noted that the Inspector responded that what is proposed in the management plan should be there now, irrespective of a 24 hour licence. And it was considered by the Inspector that there should be no trial period because the management of the premises now should be such that it should demonstrate that it can operate appropriately and co-exist in the community at this point in time. 14 The applicant submitted that 24 hour management would not provide for peaks of people queuing and waiting to come into the premises before it opens. It is also noted, however, that there is queuing associated with these establishments in terms of the maximum number of persons that are permitted. And the residents had complained previously to management, but in fact there had been no response in terms of the establishment to those complaints. 15 I recognise that when one lives in an area that is within close proximity to what is called a night time entertainment precinct of an inner city area that one cannot expect the same amenity as in other residential areas and this is an established principle. At the same time, I do not accept the applicant's submission that a 12 month trial period or an extension to the operating hours should be allowed to proceed on the basis that the management plan is proposed to overcome many of the existing problems of the operation of the premises. 16 I accept the evidence of the Inspector that there is no reason why the applicant cannot operate the premises in a more acceptable way now and that there is nothing to stop a management plan being implemented from this point in time, or any other time that the applicant may choose. And this does not require or need a condition attached to a 24 hour licence before being implemented, however this is a matter for the applicant from the evidence to the Court, I am satisfied that irrespective of a management plan or not the establishment must demonstrate that it can operate in an appropriate manner prior to a 24 hour licence being granted, whether that be on a trial basis or not. 17 The approval of the 24 hour licence, it was submitted, provides the opportunity to put a management plan in place. It certainly does provide the opportunity to put a management plan in place, but there is nothing to prevent a management plan being voluntarily entered into at this point in time. After the implementation of the management plan and a mechanism for the residents to have their concerns responded to and any other persons concerns responded to, then the applicant may wish to, at a future time, submit a further development application for the extension of the trading hours to 24 hours for the subject premises. However, this is a matter for the applicant. 18 Therefore, based on the evidence that has been provided to the Court, I am not satisfied that a 24 hour licence, whether that be on a trial period or not, should be allowed at this point in time as the current operation and management of the premises has adverse impacts. It was submitted on behalf of the applicant that a refusal of the 24 hour operation would not lead to an improvement of the existing situation. While a plan of management may be a way forward for the premises at the same time granting approval to this development application it is not the only way that a management plan can be put in place. 19 Therefore, the orders of the Court in this matter are: 1. The appeal in respect of the premises known as 1-5 Flinders Street, Surry Hills is dismissed. 2. The development application submitted to Sydney City Council is determined by the refusal of consent. 3. The exhibits are returned. _______________________ J S Murrell Commissioner of the Court ljr 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.