Vace Investments v Sydney City Council [2004] NSWLEC 374

Land and Environment Court of New South Wales

CITATION : Vace Investments v Sydney City Council [2004] NSWLEC 374 APPLICANT: Vace Investment Pty Ltd PARTIES : RESPONDENT: Sydney City Council FILE NUMBER(S) : 20325 of 2004 CORAM: Roseth SC KEY ISSUES: Discretion :- revocation of Place of Public Entertainment Approval LEGISLATION CITED: Local Government Act 1993, ss 109 and 178 CASES CITED: Masterbuilt Pty Ltd v Hornsby Council (1995) 87 LGERA DATES OF HEARING: 05/07/2004-07/07/2004 DATE OF JUDGMENT: 07/15/2004

Mr P Clay, barrister instructed by Ms J Henna of Arraj Lawyers LEGAL REPRESENTATIVES: Ms J Jagot, barrister instructed by Mr M Arch, council solicitor

JUDGMENT: - 8 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

15 July 2004

20325 of 2004 Vace Investments Pty Ltd v Sydney City Council

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

Background 2 The premises previously operated under the name of Berlin Bar, which was also in the applicant company's ownership, though under a different name. The POPE approval for the Berlin Bar was subject to a maximum of 225 people on the premises. On 29 July 2002 and 9 August 2002, the Police found that the number of people in the Berlin Bar significantly exceeded 225. On 16 September 2002 the council revoked the POPE approval. The applicant appealed against the revocation. On 6 December the Court upheld the appeal subject to personal undertakings given to the Court by several persons connected with the applicant company and/or the operations of the bar, to the effect that they would ensure that the bar would henceforth operate in compliance with the conditions of approval. 3 The Veda nightclub took over from the Berlin Bar on 9 May 2003, when a POPE approval was granted subject to conditions that were similar to those attached to the approval for the Berlin Bar, including the maximum capacity of the premises being 225 persons. Three other conditions are relevant to this appeal, namely Conditions 1, 4 and 8(a). Condition 1 required that the method of checking the number of persons admitted into the public entertainment area shall be by a doorman and that this count shall be supplemented by a head count conducted by the licensee. Condition 8(a) required that the doorman must employ two counting devices (referred to as clickers), one for counting the persons entering and the other for counting those departing. Condition 4 required that the fire safety measures of the Building Code of Australia and the Environmental Planning and Assessment Regulations 1993 be observed. 4 On the night of 26/27 September 2003, the council's compliance officer, Mr G Lim and Senior Constable C Larssen from the Rocks Local Area Command of the Police inspected the nightclub. Mr Lim counted 509 persons on the premises, noticed that the clickers were not in use and found some breaches of fire safety measures. 5 On 8 December the council issued a Notice of Proposed Revocation of the POPE Approval. The notice gave as reason the failure to comply with the condition that the capacity be limited to 225 persons. On 19 December the council revoked the approval. The appeal is against that revocation.