Fleming S v Sutherland Shire Council [2007] NSWLEC 462

Land and Environment Court of New South Wales

CITATION : Fleming S v Sutherland Shire Council [2007] NSWLEC 462

APPLICANT: PARTIES : Stephen Fleming RESPONDENT: Sutherland Shire Council

FILE NUMBER(S) : 10157 of 2006

CORAM: Watts C at 1

KEY ISSUES: Development Consent :- Whether the conditions relating to numbers of patrons should be amended; Alleged anti-social behaviour of patrons in the street near the premises.

LEGISLATION CITED: Sutherland Shire Local Environmental Plan 2006, (SLEP2006) Environmental Planning and Assessment Act 1979, ss79C and 96

DATES OF HEARING: 26/07/2007

EX TEMPORE JUDGMENT DATE : 26 July 2007

APPLICANT: Mr D T Miller, barrister, instructed by Ms I P Ferguson, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Gadens Lawyers RESPONDENT: Mr J M Reilly, solicitor SOLICITORS: Home Wilkinson, Lowry

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

26 July 2007

10157 of 2006A - Stephen Fleming v Sutherland Shire Council

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Sutherland Shire Council (the council) of a application to modify a consent granted by the Court on 16 November 2006 in respect of the use of the first floor at Lot 261, DP 793641, being Nos 84 - 86 Cronulla Street Cronulla, NSW, as a nightclub. The applicant seeks to amend three of the conditions of consent and to increase the number of patrons permitted within the premises. 2 I visited the 'Fusion' nightclub in company with the parties on the morning of the first day of proceedings. 3 I have concluded that the operational capacity of 'Fusion' nightclub may be increased to 440 person without the need of a further trial period. The conditions 4 The applicant seeks to amend: · Condition 3, as was amended by the Court on 16 November 2006, to read: A maximum number of persons who may occupy the nightclub premises at any one time is regulated as follows: (a) 300 (b) notwithstanding (a) above, a maximum number of 350 person will be permitted for a trial period till 1 May 2007, after which the maximum number will revert to 300 persons. · Condition 4 that was amended by the Court on 16 November 2006 to read: 4. Plan of management A. The nightclub shall be operated in accordance with the Plan of Management dated October 2006 approved as part of this consent. The Plan of Management shall be amended to contain reference to this consent and the relevant Place of Public Entertainment Certificate. It shall be the responsibility of the licensee to ensure all relevant employees are aware of the requirements of the Plan of Management and that their duties are discharged accordingly. B. The Plan of Management can only be amended with the consent of the Council. C. The Plan of Management is annexed to these conditions as Annexure 1. · Condition 19 that was amended slightly on 16 November 2006 to read: 19. Hours of operation - Licensed premises To protect the amenity of the surrounding environment the trading hours of the premises shall be restricted to the following hours: Monday to Saturday 8pm to 3am Sundays (except for Sundays 8pm to midnight preceding public holidays) Public Holidays (excluding Public 8pm to 3am Holidays on a Sunday, Christmas Day and Good Friday) Sundays Preceding Public Holidays 8pm to 3am Christmas Day and Good Friday 8pm to 10pm New Years Eve 8pm to 3am 5 By way of comparison the original Condition 3 stated: A maximum number of 250 persons shall occupy the nightclub premises at any one time. 6 The original Condition 4 stated: The nightclub shall be operated in accordance with the Plan of Management dated July 2005 approved as part of this consent. The Plan of Management shall be amended to contain reference to this consent and the relevant Place of Public Entertainment Certificate. Clause 4.0 of the Plan shall be amended to reflect the maximum number of persons permitted by Condition 3 of this Consent, ie 250 persons and a copy of the amended Plan forwarded to Council. It shall be the responsibility of the licensee to ensure all relevant employees are aware of the requirements of the Plan of Management and that their duties are discharged accordingly. 7 The original Condition 19 stated: To protect the amenity of the surrounding environment the trading hours of the premises shall be restricted to the following hours: Monday to Saturday 8pm to 3am. Sundays 8pm to midnight. Public holidays 8pm to midnight. Christmas Eve 8pm to 3am. New Years Eve 8pm to 3am. The premises 8 The premises are situated on the eastern side of Cronulla Street (Cronulla Mall) between Purley Place and Surf Road. The land on which the premises are located has a width of 18.05m and a depth of about 45m, giving an area of some 800m2. 9 Erected on the land is a commercial building and the 'Fusion' nightclub occupies the first floor. Public access to the nightclub is off Cronulla Street, however there is service access from Surf Lane at the rear. The ground floor comprises four offices and a storage area. 10 The premises comply with Building Code of Australia (BCA) requirements for services and fire safety for a compliant capacity of 450 persons. 11 The premises are within the Cronulla shopping centre. To the north and south there are shops and commercial premises on the ground floor with commercial premises and offices on the first floor. Opposite on the western side of Cronulla Street there are shops on the ground floor with offices and commercial premises on the first floor. Across the lane at the rear of the land are a residential flat building and a high-rise mixed commercial/ residential building. Relevant planning controls Sutherland Shire Local Environmental Plan 2006, (SLEP2006) 12 Under the provisions of the SLEP2006 that commenced operation on 29 November 2006, the land is in Zone 8 - Urban Centre and the proposal as a nightclub is permissible with consent. 13 The objectives of Zone 8 - Urban Centre are as follows: (a) to identify appropriate land for the provision of a wide range of retail, business and professional activities, (b) to promote viable businesses through increased economic and employment activity, (c) to provide for an integrated mix of commercial, office, retail and residential buildings, and (d) to create attractive, vibrant and safe establishments and facilities as a focus for community spirit. 14 The heads of consideration in cl 53 of SLEP2006 in relation to transport accessibility, traffic impacts and car parking state: The consent authority must not consent to development unless it has considered the following matters that are of relevance to the development: (a) the extent to which the proposed development maximises opportunities, through design integration, to provide: (i) efficient links to identified transport nodes and corridors, such as railway stations, bus routes, pedestrian and cycle paths, and (ii) facilities to cater for bicycle users, (b) the extent to which the demand for car parking, where there is good access to public transport nodes, will be managed, (c) the extent to which appropriate levels of car parking will be provided in connection with the development, (d) the extent to which walking, cycling and the use of public transport have been or will be encouraged, (e) the design of proposed car parking areas and access to them. Development Control Plans 15 The applicable development control plans are: · Cronulla Centre Development Control Plan, (CCDCP) · Car Parking Development Control Plan, (CPDCP). The proposal and its history 16 The modification application to amend development consent No 05/0900 was lodged with the Court on 11 April 2007 under s 96 of the Environmental Planning and Assessment Act 1979 to vary conditions of consent in relation to maximum numbers of patrons and noise, that were imposed by the Court when it granted consent on 16 November 2006. 17 The applicant now seeks to increase the maximum number of patrons of the nightclub to 440 persons. 18 When the Court granted consent on 16 November 2006, for the use of the subject property as a nightclub, it allowed an increase in maximum number of patrons to 300 persons, and permitted, for a trial period, an increase to 350 persons. The Court also imposed conditions in relation to noise testing, under Condition 25. 19 The applicant now seeks to delete Condition 3, and replace it with a condition specifying the maximum number of patrons as 440. It also seeks the deletion of Condition 25(b) (acoustic measurements during trial period), Condition 25(c) (consequences for non-compliance with condition 25(b)), revision of Condition 25(d) (annual noise testing), and deletion of Condition 25(e) (independent noise testing during trial period). 20 This chronology of the actions of the council was included in the statement of facts: · 20 July 2005 - the council received DA 05/0900. · 2 August 2005 – the council notified nearby property owners and invited written comment on the development proposal. Notification period expired on 16 August 2005. · 18 August 2005 – the council wrote to the applicant requesting an updated acoustic report to assess the potential impact on nearby residential properties from the proposed increased patronage now sought. · August 2005 – the council received 23 letters of objection during the neighbour notification period. · 10 September 2005 – the council received a detailed letter of objection from NSW Police Service - Miranda Local Area Command in relation to the development proposal. · 10 October 2005 – the council received a letter from Don Fox Planning stating that it is impractical and unreasonable for the applicant to provide independent access to the nightclub in accordance with the requirements of the Building Code of Australia. · 10 October 2005 – the council received the updated acoustic report from the applicant as requested. · 10 October 2005 – the council received a letter from Steve Whelan & Associates Pty Limited advising that the stairs and handrails in the premises are structurally adequate and comply with the relevant Australian Loading Codes. · 22 November 2005 – the council's Independent Hearing and Assessment Panel considered the development application and concluded that the proposal cannot be supported if more than 250 persons are to be accommodated. Concerns were also raised about the ability of the premises to be noise attenuated. · 12 December 2005 – the council resolved to defer consideration of the development application pending a further report on the appropriate capacity of the nightclub. · 6 February 2006 – the council received a further report regarding capacity of the nightclub and resolved to grant development consent subject to a number of conditions including a limit on the capacity of the premises at 250 persons. · 16 February 2006 - Development Consent No. 05/0900 is issued. · 28 February 2006 - Appeal against conditions lodged with the Court. · 26 April 2006 - Section 82A review lodged with Council. · 7 August 2006 - Determination of the council in relation to conditions imposed reaffirmed. · 16-17 October 2006 - Appeal heard before the Land and Environment Court before Commissioner Moore. · 16 November 2006 - Final orders issued by the Court, granting consent. Trial period 21 When the Court made its orders on 16 November 2006, the maximum number of persons [patrons] who may occupy the nightclub premises at any one time was set at 300. However, during a trial period that ran from 1 December 2006 to 1 May 2007, a maximum number of 350 persons [patrons] were permitted in Fusion nightclub. After 1 May 2007 the maximum number of patrons reduced to 300. 22 During the trial period the applicant kept records of the activity within the nightclub. Lock-out 23 Under the heading of 'safety and security' in the plan of management, the manager of Fusion is responsible for operating a 2.00am "lock-out" between Monday and Saturday nights. The purpose of this lock-out is stated as being to assist the police to carry out their security patrols in the area. Notification 24 On 8 May 2007, the council wrote to all previous objectors and the NSW Police Service advising of the s 96-modification application and seeking submissions by 22 May 2007. The only submission received was from the Miranda Local Area Command of the NSW Police. The police were opposed to an increase in the number of patrons to 350, however, in evidence given on-site the police sought to impose an earlier 'lock-out'. The hearing 25 The application to modify a Court granted consent was filed on 11 April 2007. 26 At the hearing the court heard evidence on behalf of the respondent council from Mr B Harris, environmental assessment officer - town planner of Sutherland Shire Council; and Senior Constable S J Frost, Miranda Licensing, Miranda Local Area Command, NSW Police. 27 On behalf of the applicant Ms K Price, consultant senior town planner, and Mr S Fleming, owner and applicant, gave evidence. 28 Ms K A Johnson, the licensee of Fusion nightclub, provided written evidence on behalf of the applicant. She gave evidence that there have been no written complaints made by the police to the nightclub asserting that Fusion was not complying with the plan of management. She also stated that she is, [Note: Exhibit E, p 4] "…not aware of any complaints having been raised or lodged with respect to Fusion in the Licensing Court in the last 12 months, or of there being any complaints to me or anyone else connected with the Club about noise coming from the Club while operating. 29 Ms D A Pinfold, Authorised Officer of Sutherland Shire Council, prepared the statement of facts and contentions dated 29 May 2006. The council's contentions 30 On 29 May 2006 the council filed a statement of contentions. IMPACT ON AMENITY 1. The proposed amendment to consent conditions to increase patron numbers from 300 to 440 is unsatisfactory, and should not be supported, as the increase in patron numbers is likely to contribute to adverse impacts experienced by the occupants of nearby development, both residential and commercial, in relation to noise and anti-social behaviour. The increase in patron numbers is likely to result in further occurrences of anti-social behaviour and noise disturbances associated with patrons leaving the premises in the early hours of the morning, particularly given the lack of available transport during those hours. Particulars: i. Aim in clause 3 of Sutherland Shire Local Environmental Plan 2006 ('SSLEP 2006'). "…to preserve and enhance the quality of life of the local community". ii. Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, being "…the likely impacts of that development, including... social impacts ... in the locality".