Land and Environment Court of New South Wales CITATION : Solowave Pty Ltd v Sydney City Council [2008] NSWLEC 1326 APPLICANT Solowave Pty Limited PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 11504 of 2004 CORAM: Murrell C KEY ISSUES: Development Consent :- Section 96 Modification Application - further trial of extended hours of operation; noise compliance; security; impact on surrounding area; non compliance with conditions of consent. Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 LEGISLATION CITED: State Local Environmental Plan 2005 Central Sydney Development Control Plan 1996 City of Sydney Development Control Plan - Late Night Trading Premises 2007 CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 DATES OF HEARING: 03/04/2008; 04/04/2008; 05/04/2008; 17/12/2007; 01/06/2006; 02/06/2006; 24/07/2006 DATE OF JUDGMENT: 12 August 2008 APPLICANT Mr D. Wilson, barrister, Instructed by Mr A. Whealy LEGAL REPRESENTATIVES: of Gadens Lawyers RESPONDENT Mr S. Kondilios, solicitor, of Maddocks Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 12 August 2008 11504 of 2008 Solowave Pty Limited v City of Sydney Council JUDGMENT 1 The applicant is appealing against the Council's refusal of an application to modify the consent, issued on 24 July 2006, for the hours of operation of a nightclub on the first floor level of the premises known as 31-33 Oxford Street, Darlinghurst. The applicant is seeking to have Condition 6 amended such that it would allow the continuation for a further twelve months of the trial period for extended late night trading of the establishment. 2 By way of background the previous appeal to this Court was against the conditions attached to the Council's consent for a nightclub. That appeal was against the imposition of conditions, including: the hours of operation; the number of security personnel and security measures; and whether a new roof was required to enclose the premises to attenuate noise. 3 The previous appeal was upheld in part. The twelve month trial was approved for Friday and Saturday nights and any night preceding a public holiday to allow 24 hrs trading, and after the twelve month trial period closing to revert to midnight, that is as required in the standard hours. The standard hours in the consent are contained in Condition 6 whereby the hours of operation of the premises are restricted from 8 am to midnight, 7 days a week. 4 Condition 6 in the Consent of 24 July 2006 reads as follows: Hours of Operation 6. The hours of operation are regulated as follows (with closing hours being such that no customers remain in the premises): (a) The hours of operation of the premises shall be restricted to 8.00 am to midnight seven days a week. (b) Notwithstanding (a) above, the premises may operate on a 24 hour basis from 12 midnight on Fridays to 12 midnight on Saturdays and from 12 midnight on any day preceding a public holiday for a trial period of twelve (12) months from the date that consent is granted. (c) Notwithstanding (a) above, the premises may also operate between 12 midnight and 3:00 am the following day on Sundays to Thursdays inclusive for a trial period of 12 months commencing at the same time as the trial period referred to in (b) above. 7. A further application may be lodged before the expiration of the twelve (12) month trial period for 's consideration of the continuation of the above extended hours of operation, or a further extension. Such consideration will be based upon, inter alia, the performance of the operator in relation to compliance with development consent conditions, any complaints received and any views expressed by the Police. 5 The site is located in what is known as the entertainment precinct of Oxford Street on the southern side between Brisbane and Pelican Streets. Level 1 is within a three-storey building, the ground floor comprises two retail shops with the first floor occupied by the UN Sydney nightclub, formerly known as the DCM nightclub. The second floor is used as an office and storage area for the nightclub. The nightclub relies on fire escape access via rear stairs to exit onto the rear lane. 6 The area surrounding the premises is a mix of uses including residential apartment blocks, commercial premises retailing at ground level, cafes, restaurants, and places of entertainment. 7 To the immediate south of the site are high-rise residential apartments known as Oasis apartments at 6-18 Poplar Street, and Paramount apartments at 1-7 Pelican Street. To the north of the site on the opposite side of Oxford Street are high-rise residential apartment buildings, known as the 'Park Ridge' apartments at 6-16 Oxford Street, and the Park Apartments at 18-32 Oxford Street. Issues 8 The Respondent provided a Statement of Contentions as follows: Hours of Operation 1. The continuation of the extended hours of operation would not be in the public interest given the performance of the operator in relation to compliance with development consent conditions, complaints received and the views expressed by the Police. Particulars (a) The applicant has failed to comply with the following conditions of consent: * Condition 5 – Further Acoustic Testing - No evidence exists that an acoustic report was submitted within 30 days of commencement of the trial hours of operation. - The applicant has not demonstrated that they are able to achieve acoustic compliance. - No evidence exists that during the 12 month trial period that independent noise compliance testing has been conducted on at least 3 occasions with particular regard to conducting measurements from the nearby residential apartments. * Condition 8 – Place of Public Entertainment - The condition only permits the use of the premises for the provision of entertainment subject to a POPE licence being issued. On 15th December 2006 issued an Order for premises to cease use as a Place of Public Entertainment venue. A further letter was issued by on 1 February 2007 asking the applicant to furnish information to assist in the assessment of the POPE application lodged on 10 September 2004. On 2nd August 2007 a letter was issued to the applicant advising of refusal of POPE application. - To date the premises continues to operate as a Place of Public Entertainment without approval. * Condition 14 – Security Personnel The requirements relating to security personnel have not been complied with in accordance with the consent condition, which governs the ratio of security personnel, location, uniform and responsibilities. * Condition 23 – Care of Building Surrounds - There have been repeated incidences of rubbish blocking fire egress point and building surrounds particularly to rear of site. * Condition 31 – Access for People with Disabilities - An Access Management Plan has not been submitted to. * Condition 34 – Mechanical Ventilation Certificate - A Mechanical Ventilation Compliance Certificate or copy thereof has not been submitted to following the completion, installation and testing of all the mechanical ventilation systems covered by the original approval. 2. The management has consistently failed to operate the subject premises in terms of the approved consent conditions and consequently poses a significant risk to public safety and a considerable impact on the amenity of the residential and commercial development in the vicinity of the site. As a result, the operation of the premises has: (a) Consistently failed to comply with the operational requirements of the consent and the requirements of the BCA, in particular those relating to Places of Public Entertainment and Fire Safety. (b) Failed to comply with the following aims and strategy of the SELP 2005: - to protect and enhance the diversity and special qualities of the City of Sydney, and its surrounding areas (clause 11(a)) - to establish the City of Sydney as the best place to live in, work in and visit (clause 11(b)); - to foster environmental, economic, social and physical well-being so that the City of Sydney continues to develop as an integrated, balanced, sustainable and prosperous living city of world standing (clause 11(c)), - to encourage orderly, sustainable and high quality development of land and other resources within the City of Sydney (clause 11(d)); and - protection and enhancement of the amenity of residents, workers and visitors (clause 12 (f)). (c) Failed to comply with the objectives and provisions of the Central Sydney DCP 1996 relating to internal amenity, public safety, size and intensity of the use and the impact on the amenity and desired future character of the area. Statutory Planning Framework 9 The City of Sydney Local Environmental Plan 2005 (LEP) applies to the subject site. In the preliminary section of the LEP under Clause 4 it states: The consent authority in considering any proposed development must have regard to the relevant aims, strategies, and principles contained in this plan and may have regard to any published planning and design provisions and policies adopted by the Central Sydney Planning Authority or the . 10 Clause 11 sets out the aims of the plans: (a) to protect and enhance the diversity and special qualities of the City of Sydney and its surrounding areas, and (b) establish the City of Sydney as the best place to live in, work in, and visit, and (c) to foster environmental, economic, social, and physical well-being so that the City of Sydney continues to develop as an integrated, balanced, sustainable, and prosperous living city of world standing, and (d) to encourage orderly, sustainable and high quality development of land and other resources within the City of Sydney, and (e) to conserve the environmental heritage of the City of Sydney. 11 The strategies for achieving the aims of the plan include: (a) development of the City of Sydney as a vibrant, culturally diverse, multi-use City centre (b) continued growth of a permanent residential population in central Sydney, including (c) provision of a full range of housing including affordable housing. (d) Provision of appropriate development potential. (e) Provision of visitor and tourist accommodation. (f) Protection and enhancement of the amenity of residents, workers and visitors. (g) Protection and enhancement of the quality and amenity of the public domain – the parks, places, streets and lanes. 12 Part 6 of the LEP contains special provisions, and Clause 28 contains objectives for late opening pubs and the like as follows: (a) to minimise the impact of certain uses that may degrade the amenity of the City of Sydney, such as amusement centres, brothels, restricted premises, late opening pubs and the like, and (b) to ensure that such uses are not concentrated together and that their cumulative impact is assessed. (c) to improve the character and attractiveness of the city of Sydney for residential, retail, commercial, and cultural activities. 13 Clause 29 sets out the matters to be satisfied in granting consent to late opening premises and these are as follows:- (a) The proposal will not have a detrimental impact on the amenity of the locality and the desired character of the locality as indicated by: (i) the objectives of the zone in which the land is situated; (ii) if the land is in a special area the character statements and specific objective for the special area; (b) the proposal would not result in an inappropriate concentration of that use and together with other of the above uses of the locality result in a detrimental cumulative impact; (c) the proposal would not be detrimental to other uses considered to be more consistent with the objectives of the zone in which the land is situated. 14 The provisions for zoning include the objectives of the city as shown under Cl 38:- (a) to encourage a mixed use, medium density area which would provide a physical transition between the city centre zone, and nearby lower density, mixed use residential areas; (b) to encourage an increase in the permanent residential population through new residential design and the conversion of existing buildings and to ensure the maintenance of a range of housing choice. 15 The explanatory notes for the City of Sydney LEP explain that it provides an important transition between the high intensity of development within the city centre zone and the lowest scale of development in surrounding areas, such as Ultimo and Surry Hills. 16 Clause 39 states that the City edge zone is a mixed use zone. 17 The central Sydney Development Control Plan 1996 is also a relevant document for assessment of the development application and clause.9 provides special controls "to ensure that uses such as late opening premises are located, designed and operated, such that the use does not impact detrimentally on the general amenity and safety of the City". The strategy is that amusement centres, brothels, restricted premises, late opening pubs and the like can locate in areas where there is a mix of uses. The impact of these uses on surrounding residences and the public domain needs to be considered in assessing any application for the uses. The concentration of these uses is discouraged." 18 A late opening pub is considered to be premises that operate after twelve midnight, Monday to Saturday night, and eleven pm Sunday. 19 The Council adopted the Development Control Plan 2007 (DCP) for Late night trading premises that commenced operation on 1 January 2008. The main aims of the DCP are: (i) To assist in the management of the impact of late night trading premises on the sites and neighbourhoods in which they are located; and in particular protect the amenity of residential properties. (ii) A planning policy document can look to achieve this through controls; setting limits on late night trading hours and by promoting ongoing management of late night trading premises by requiring that approvals are subject to ongoing trial periods. (iii) As a requirement of this DCP, it is particularly important for proponents of high impact night trading premises to demonstrate responsible management over time. This commitment should be demonstrated both at the development application stage and throughout the history of management of the operation of premises. 20 Late trading hours are considered by the City of Sydney Council to be a privilege. And "late trading hours will only be approved in circumstances where an ongoing commitment to good management is evident through a series of successful trial periods". 21 The objectives of the DCP are: a. identify appropriate locations and trading hours for late night trading premises; b. ensure that late night trading premises will have minimal adverse impacts on the amenity of residential or other sensitive land uses; c. ensure that a commitment is made by operators of late night trading premises to good management through the implementation of robust plans of management; d. encourage late night trading premises that contribute to vibrancy and vitality, as appropriate for a Global City; e. encourage a broad mix of night time uses with broad community appeal that reflect the diverse entertainment and recreational needs of people who work and live in the City of Sydney as well as people who visit the City; f. encourage a diversity of night time activity in defined Areas; g. prevent the proliferation of poorly managed high impact late night premises; h. ensure that new late night trading premises do not reduce the diversity of retail services in an area; i ensure that development applications are accompanied by sufficient information so that proposals for night trading premises can be fully and appropriately assessed; j. provide the possibility of extensions of trading hours for premises where they have demonstrated good management during trial periods; k. encourage premises with extended trading hours that are of a type that do not operate exclusively during late night hours and may be patronised both day and night; l ensure that appropriate hours are permitted for outdoor trading; and m ensure a consistent approach to the assessment of applications for premises seeking night trading hours. 22 The DCP applies to existing premises seeking extension or renewal of trial trading hours. The DCP is not retrospective and nor does it derogate from existing consents. The subject premises are classified as high impact; (such premises include nightclubs and hotels and premises that have a capacity of more than 120 patrons where the owner or occupier provides for or permits the consumption of alcohol on the premises). 23 The DCP identifies late night trading areas that include:- - focal points for varied night time and social activity, - at least in part places that are of a distinct night-time entertainment character. 24 The subject site is included in the late night management area on the maps that accompany the DCP. 25 The DCP lists a number of matters for consideration in determining applications including: "a. the location and context of the premises..... b. the specific nature of the premises; for instance pubs, nightclubs, restaurants and the proposed hours of operation c. size and patron capacity of the premises d. the impact of the premises on the mixed diversity and possible concentration on late night users e. submission of a Plan of Management that demonstrates a strong commitment to good management of the operation of the business, particularly in relation to managing potential impacts on adjoining and surrounding land uses and premises as well as the public domain." Measures to be used for ensuring adequate public safety, security and crime prevention, both on the site of the premises and in the public domain immediately adjacent to and generally surrounding the premises. 26 The DCP includes provisions for trial periods, extended hours and plans of management as follows: Trial Periods Approvals for late night trading premises will be limited in time to enable Council to assess the ongoing management performance of a premises and its impact on neighbourhood amenity. Any extended hours (ie. beyond the "base" hours identified in Table 1) will be subject to a trial period. Trial periods also allow Council the flexibility to review the conditions on development consents and respond to such things as changes in the late night character of a neighbourhood and changes in management. If the Council determines that a trial period has been unsatisfactory then trading hours will revert to the base hours. Council will consult with an applicant prior to making such a determination. Development applications for a renewal or extension of trial trading hours should be lodged within 30 days of the expiry of a trial period and applicants will be allowed a period of 'grace' until the new development application has been determined. During this period, the premises may continue to trade during existing approved trial hours. If a development application is not lodged within 30 days from the expiry of the trial period then approved trading hours will revert to base trading hours. This only applies to development applications determined after the commencement date of this DCP. Extended Hours Council may approve extended trading hours above base hours on a trial basis. Trading hours beyond base hours may be permitted at the initial DA stage, but only where the Council has determined that the premises have been (or will be) well managed, including compliance with a Plan of Management. At the completion of a trial period a new development application must be lodged to either renew existing trial hours or to seek an extension of trading hours. Plans of Management Plans of Management are to include information about the operational and contextual aspects of a premises (eg. locality description, security numbers, noise emission, trading hours etc.) as well as details about what actions will be taken to ensure that premises will be responsibly managed (eg crown control procedures, noise minimisation, waste management etc.) This will ensure that proponents of late night trading premises have considered and addressed any potential impacts that may arise from their operation during late night hours, as well enabling the Council to effectively assess any impacts of a proposal. It is the responsibility of the licensee to facilitate a well run and managed premises and display sensitivity about the impact of the premises on the liveability of neighbourhoods. Plan of Management Monitoring and Review Consideration should be given to changes in the nature of the operation that have occurred during a trial period that have given rise to unforeseen impacts on the amenity of the area or have been the basis for a substantiated complaint made to Council or the Liquor Administration Board against the premises. At the termination of a trial period it will be necessary this information (in the form of a new Plan of Management which includes a statement of revisions of the previous Plan of Management) accompanies a development application for a renewal or extension of trading hours so that Council can determine whether adequate steps have been taken to resolve problems arising from the operation of the premises during a trial period. The Council will also undertake its own review of the level of compliance with the Plan of Management and whether the trial period has been successful. This review will include (but not limited to): a. consideration of complaints to Council and the Liquor Administration Board; b. an assessment of inspections by Council Officers during trial periods; and c. consideration of Police complaints. Trading Hours and trial periods a. A renewal or extension of trading hours may only be permitted if Council is satisfied that a late night trading premises has demonstrated good management performance and compliance with a Plan of Management (or management checklist) following the completion of a satisfactory trial period. b. Category A and B premises seeking extended trading hours may be permitted up to two additional operating hours per trial period if a previous trial period is considered by the Council to have been satisfactory. c. Trial periods may be permitted up to the following durations: i. First trial - 1 year ii. Second trial - 2 year iii. Third and subsequent trials - 5 years d. Once the full range of extended trading hours are reached (as prescribed in Table 1), a DA must be lodged every 5 years to renew trading hours. e. If the Council determines that a trial period has been unsatisfactory then trading hours will revert to the base late night trading hours; or whatever hours have been approved as the maximum trading hours prior to the commencement of this DCP). 27 The trading hours for Category A premises in the late night management area for the base hours - 6am to Midnight, and for the extended hours - 24 hrs. 28 Appendix 1 to the DCP provides key defining elements on the character of late night management areas including: These places should be vibrant and multifunctional places where people can go out late at night in safety without affecting the amenity of nearby and residents. Patrons of late night trading premises should be able to take advantage of a diverse range of cultural and entertainment opportunities in close proximity to each other; without one particular type of late night use dominating which may usurp the diversity and attraction of the area. Late Night Management Areas are often regional "destinations" that have accessible and frequent public transport at night and usually have their focus on main streets or tourist locations where people shop, meet, work and live. Given the likely higher level of visitation and the possibility of long trading hours, it is important that all premises, especially those "high impact" premises are well-managed and regulated. 29 This appendix also provides notes on issues and management and trading hours as follows: Issues and Management Due to the concentration of late night trading premises in Late Night Management Areas, the cumulative noise levels, generation of human and vehicular traffic, and activity levels will be an issue, more so than in any other late night trading areas. Whilst it is acknowledged that noise and late night activity is a key characteristic of these areas, it is also essential to manage the cumulative impacts of late night trading premises in Late Night Management Areas and to effectively manage each individual late night premises within the area. Since Late Night Management Areas may be destinations for people that live outside the City of Sydney, particularly on weekends, it is important that this higher visitation is managed effectively in order to minimise the impacts of late trading premises on nearby sensitive uses. It is important that proposals for late high impact premises such as hotels and nightclubs premises are accompanied by detailed Plans of Management, which effectively address amenity, safety and security. Trading Hours Extended hours can allow Late Night Management Areas to reinforce their role as centres of activity that offer entertainment, social and cultural opportunities that attract both locals and international visitors. Early morning trading hours may be acceptable for premises located in Late Night Management Areas where proponents can verify over time that noise, safety and amenity impacts can be managed to a level, which is at an acceptable community standard. Up to 24 hour trading may be permissible in Late Night Management Areas; but only in circumstances where applicants have a sustained track record of good management, minimising amenity and safety impacts. 30 The definition for licensed premises:- - a licensed premises includes any premises licensed to sell alcohol (independently of food service), such as a pub, registered club, night-club and karaoke lounge. These premises may also have a place of public entertainment [POPE] licence whereby entertainment (eg. amplified or live music) is provided. 31 Within the city edge it is proposed that licensed premises shall be permitted to trade as follows: - Standard Hours: 8 am to 11 pm Monday to Saturday, and 10 am to 10 pm Sunday; - One Year Trial Hours: 8 am to 1 am Monday to Saturday, and 8 am to Midnight Sunday, or where residential uses are in close proximity; 8 am to Midnight Monday to Saturday, and 8 am to 11 pm Sunday. 32 The general provisions about applications for the extension or review of trial periods: Trial Periods Approvals for late night trading premises will be limited in time to enable Council to assess the ongoing management performance of a premises and its impact on neighbourhood amenity. Any extended hours (ie. beyond the "base" hours identified in Table 1) will be subject to a trial period. Trial periods also allow Council the flexibility to review the conditions on development consents and respond to such things as changes in the late night character of a neighbourhood and changes in management. If the Council determines that a trial period has been unsatisfactory then trading hours will revert to the base hours. Council will consult with an applicant prior to making such a determination. Development applications for a renewal or extension of trial trading hours should be lodged within 30 days of the expiry of a trial period and applicants will be allowed a period of 'grace' from the termination of the trial period until the new development application has been determined. During this period, the premises may continue to trade during existing approved trial hours. If a development application is not lodged within 30 days from the expiry of the trial period then approved trading hours will revert to base trading hours. This only applies to development applications determined after the commencement date of this DCP. Evidence and Submissions 33 The Court met on-site the first morning of the proceedings and heard from a number of resident objectors. Their concerns included that the type of people that frequent the establishment, in particular 18-25 intolerant males are threatening at times to the locals in the area. There are also complaints about the excessive queuing that snakes down the road, which cannot be controlled by one bouncer. The resident objectors also complained about the recurring noise problem from the establishment. There was also evidence that the management, while it has improved, the conditions are breached and they allow the consumption of drugs and alcohol to an excess. 34 The residents also complained about the thudding base sound of the music, the screeching of cars and screaming on the street by the clientele. The residents expressed concern that while the base vibration and noise is controlled from time to time, it soon after reverts back to a disturbance, which results in repeated complaints to the City Rangers. Concern was also expressed at the lack of crowd control with the queue to Brisbane Street and around the corner, three to four persons deep, and that other clubs do not have the same problems. 35 The residents also stated that the management of the subject premises has had an opportunity to demonstrate that it can comply and it has not complied with the Conditions of Consent, and they have no issue with operating to midnight but not beyond. The residents also complained about groups of patrons from the nightclub smoking on the footpath. The residents also complained of the numbers of people in the area and that the numbers for the establishment swell exponentially on occasions. 36 The Court also heard evidence from a number of experts including the single expert Mr Stephen Cooper, a consultant acoustic engineer. On behalf of the Respondent, evidence was also provided by Mr Mark Solomon, a Council Planner, and Sergeant Peter Mort from the NSW Police Licensing Section. On behalf of the Applicant, evidence was given to the Court by Ms Katherine Price, a consultant planner and Mr Koikas, a noise consultant. 37 Mr Solomon for the Respondent advised since the Court granted consent on 24 July 2006, there had been twenty-four separate incidences of complaints made to the Council. However the Applicant contends that only a few complaints have been received within the twelve month trial period. Mr Solomon states that he does not consider the complaints logged by Council are exhaustive, because: "some persons disturbed may choose not to take any action; others may call the police other than Council; and Council records are not exhaustive - some calls fail to be logged". 38 Mr Solomon states that he has viewed video footage taken by the NSW Police Service for the 25 November 2007, at approximately 3-3.30 am and that this shows "poorly controlled queuing - despite undertakings to Council, together with incidences of violence, which is currently the subject of a police investigation." 39 Also included in his statement of evidence are five photographs he has reproduced from the DCM/UN Sydney website that show not only lengthy queues but covering a large proportion of the footpath/ pavement. He is also of the opinion that the restriction of 330 occupants is often exceeded as shown in the photographs attached to his statement. He further states that: "the subject premises have not operated in a manner that promotes safety of residents and visitors, whilst also significantly impacting on the amenity of residents." It is my opinion that, (given existing management performance and the inadequate noise attenuation measures), the premises will not improve." 40 Mr Solomon is also of the view that the Applicant has not complied with other conditions of the consent including further acoustic reports required in Condition 5 of the consent. The Council issued a prevention notice to cease to operate and noise abatement direction to the management of the nightclub on 30 August 2006 to advise that no validation of complying noise levels has been received by the Council with the premises unable to achieve acoustic compliance. Furthermore Mr Solomon says that an annual noise compliance test has not been received by the Council to verify that the limiters are set correctly in accordance with levels allowed under the Consent and that noise levels comply with the requirements of Council and the LAB. Similarly Mr Solomon says that there is no evidence that the three acoustic noise tests have been undertaken during the twelve month trial period and that in his opinion: "the failure of management to meet the requirements under this condition demonstrates their overall unwillingness to operate in a manner that benefits the business, the patrons and the community." 41 Mr Solomon also states that Condition 14 and 15 for Security personnel have not been complied with, and that Police Records indicates a number of infringement notices between 2 June 2007 and 26 August 2007. 42 The Council officer's report on the modification application dated 30 August 2007, makes the following comment with respect to the suitability of the site for the development: "The use is of a nature in keeping with the overall function of the site. The premises are located on a retail/commercial/entertainment oriented street amongst similar uses, however, the management has consistently failed to operate the subject premises in terms of the approved consent conditions and has failed to comply with the requirement of the BCA, in particular those relating to places of public entertainment. Public Interest As a result of management continual non-compliance with consent conditions, it is considered that the proposal is not considered in the public interest." 43 The issue of the licence for Place of Public Entertainment [POPE] was the subject of separate proceedings in this Court, whereby the Council agreed to enter into Consent Orders and these were issued on 17 April 2008. 44 Mr Steven Cooper is an acoustic engineer and vibration consultant and was appointed as the single expert by the parties in this matter. Mr Cooper prepared a report following an inspection on the 1st February 2007 that occurred as a result of a letter from the Council 25th January 2007 to "urgently conduct an inspection of the sound system." 45 The Council had requested a number of items be addressed, however, Mr Cooper said: "that in relation to attendance of residential premises for the purpose of measurements arrangements would need to be made with Council with purpose of access to residential premises to conduct tests." Similarly in respect of testing the equipment Mr Cooper said his attendance on the 1st February was only for identifying the settings of the sound system. He certified that the vibration isolation as set out in the condition is the same isolation that was inspected and approved on the 1st June 2006. In relation to the acoustic works associated with noise limiters on the system, he confirmed that the settings identified are the same as that set out on 1st June 2006. Mr Cooper also states: "in relation to the sound systems being fully controlled by the limiter identified in the Conditions of Consent I have no knowledge as to whether such systems or limiters have remained in place for the entire 8 months since my last inspection." 46 Mr Cooper confirmed that the main system has a locked cover across the front of the unit and the sound contractor confirmed that he had been in attendance since 1st June 2006 and the key to the padlock was not held on the premises and he had not conducted any alterations to the sound system. Mr Cooper noted that: In relation to the limiter for the rear room the limiter does not have a cover panel across the front of the limiter that would be required for full compliance. Similarly to ensure that both limiters are completely tamper proof and comply with the intent of the conditions as set out, there would need to be a cover across the rear of each limiter so as to ensure the limiters could not be unplugged and bypassed. 47 Mr Cooper concluded: "based on the limiter settings that are cited in Council's letter then based on previous testing those settings would result in acoustic compliance." 48 Mr Cooper then carried out a visit on the 17th December 2007 and he was asked to look at the settings. He said, one would expect to see "a padlock with bolts and screws and locking mechanism on rear to prevent tampering". He said, there was in fact a padlock on the front but not a heavy duty one and there was no wax seal and there was no locking mechanism or seal on the back. Therefore he said access could be obtained to the rear, and one could disconnect plugs to bypass the limiter. When he was questioned as to whether there would be a breach without the wax and padlock he said "yes" but one would simply go to the back to bypass. 49 As such, his observations were consistent with his inspection on the 1st February 2007 that access could always be obtained to the rear. Following his inspection on the 1st February a number of recommendations were made for rear panels and he said that there is a distinct possibility there could be a breach of condition 4 without the rear panels in place. Therefore he said he could understand if there were noise complaints from the 1st February to 17 December. 50 Mr Koikas had been asked on behalf of the applicant to undertake noise measurements on 7th December 2007. He concluded that the DCM Club complied on the night of testing and based on the verbal information provided by the occupant of Apartment No. 83 of the Parkridge Apartment building it is likely that it has complied for some time since 2004. Mr Koikas has also requested on behalf of the applicant to carry out tests on 26 January 2008 and he stated that: The test applied inside unit 83 was for inaudibility consistent with the requirements of the LAB Noise Criteria for periods between midnight and 7.00am. He also carried out tests on the 29th March for a unit in the building of 628 Poplar Street, Darlinghurst. In summary music levels emanating from the subject premises was at both sites inaudible with the windows, doors opened and closed. 51 The Planners also prepared a joint report and agreed that the nightclub is within "the late night management area" and contains venues known for providing late night entertainment and that Oxford Street is a main traffic route and busy vehicular and pedestrian thoroughfare. They also agree that condition 7 of the consent sets the parameters in which further applications for extended trial hours are to be assessed. 52 The plannners also agree that their was no acoustic report submitted to council within 30 days of the commencement of the trial period. Ms Price is of the opinion that condition 5(d) is ambiguous as it does not specify who is responsible for commissioning an acoustic consultant to undertake the independent noise compliance testing that is whether it be the Council or the hotel management. Mr Solomon on the other hand contends that the responsibility is on the applicant to for fill the compliance testing requirement and that the Councils role is limited to the extent to assisting in the arrangement of access to residential properties and from his experience this is only limited to supplying contact details of residents. 53 The planners agree that more effective queue management is required and can be implemented through extending the rope barricading to a maximum of three abreast. Mr Solomon is of the opinion that the queue length should not extend or encroach on adjacent sites where there is likely to be an impact on those businesses. On the issue of management the planners agree that together with any noise attenuation measures on-going effective management is critical to ensuring that any impacts on surrounding development are minimal. 54 The Applicant has submitted a revised Plan of Management, however Mr Solomon does not agree with the queue management provisions as he said it should be limited to being 10 metres long as it is an amenity issue for residents. Mr Solomon also said that from previous experience it is a concern whether the owner/manager will implement the Plan of Management. Ms Price on the other hand considers that a longer queue possibly 40 metres is acceptable providing it doesn't prevent the use of the footpath. She commented that in the past the queuing has been unacceptable but with the additional security guard to monitor the queue it could be satisfactorily managed. 55 Included in the evidence is a statement from a specialist health surveyor from City of Sydney Council. It is stated that at approximately between the hours of 2.45 and 3.30 am he inspected the residential apartment in Oxford Street for the purpose of the noise assessment audibility test it is stated that: "I observed large numbers of patrons in front of the main entry door obstructing the footpath. At 2.55 am constant noise from the patrons talking and shouting in front of the main entry doors to the nightclub and intermittent amplified music between 3 and 3.10 am from the DCM nightclub can be heard with windows doors open or closed inside habitable room area. The amplified bass music is clearly audible with the windows/ doors closed." 56 Sergeant Mort provided an affidavit on 6 September 2007 wherein he records that he has visited the subject premises on a number of occasions and the number of patrons had clearly exceeded the then license for 330 patrons. He also reported that the fire exit at the rear had been blocked with Otto bins and garbage bags. Sergeant Mort also had a conversation with a security officer who was unlicensed, but who had been working at DCM for a lengthy period of time. His duties were subsequently terminated. 57 In July 2007, the Surry Hills licensing police organised a plain clothes licensing operation. It essentially involved detecting minors in licensed premises. The minor was conveyed back to the police station and said she had not been asked for identification as she walked through the entrance door. 58 In a memo from Sergeant Mort dated 9 August 2007 he states: "Surry Hills police have concern in relation to this application. The main basis of this objection relates to ongoing non-compliance by the management in relation to the conditions imposed in the Land and Environment Court. The conditions relate to the ratio of security personnel, identification of security personnel, and metal detectors... Furthermore there has been occasions when the fire exit and the rear has been impeded, when entertainment has occurred. There has also been a situation when security guards have not used a number counting device when entertainment has occurred. In my opinion this is a significant safety issue, as it does not prevent overcrowding of patrons. I don't believe the trial period should be extended but rather it revert to the standard trading hours". 59 Sergeant Mort provided further oral evidence to the Court. He advised the Court that he was opposed to a one year extension of the trial period for the late night opening. He advised that during the trial period there had been non compliance with the conditions of consent regarding the security guards and security for the premises. He informed the Court that since there had to been a change of management in the security company there had been an improvement with respect to security uniforms and hand held metal detector. 60 Sergeant Mort stated that on many occasions he had been in the vicinity of the premises and on the premises. On one occasion he estimated the number of patrons to be 890 on the premises when the licence at the time required a limit of 330 persons. He told the Court that there had been on-going drugs on the premises. He said that on many occasions there had been excessive over crowding and non compliance of the BCA requirements to ensure fire exits are clear and unobstructed. Furthermore, the state of the stairs were that they were wet and slippery which could be catastrophic in nature. He also noted that on occasions the queue was disorderly and obstructing the footpath and that it extended to Brisbane Street some 40-50 metres long. In his experience, this is the longest/biggest queue for nightclubs. 61 Sergeant Mort referred to the COPS reports (computerised operational police system) where the events in this report recorded include a heavily intoxicated person in toilet, security licence not current. 62 Sergeant Mort indicated that the accounting system used by the nightclub is flawed and the fire exits have been noted to be locked on many occasions. He stated that the management does not participate or is not represented at the Liquor Accord meetings, a good majority of the Oxford Street establishments are active and participate with the Accord. He was asked whether he was aware that the security service company had changed on the 28th September 2007 and whether he was aware that Mr Adyn Walker was now the licensee since November 2007. Sergeant Mort said that he had not personally been to the establishment since then and when questioned as to whether there had been significant improvement he replied if one relies on the COPS reports he did not believe so. 63 On cross examination Sergeant Mort did not agree that the overall management had improved since November 2007 and that there had still been overcrowding, excessive queuing, smoking in the venue and alleged minors. 64 The affidavits of Sergeant Mort of 11th December 2007 include the following: Paragraph 6 about 2 am Sunday 29 August 2007, I attended DCM Hotel to commence a search warrant. I entered the hotel via the front door. Paragraph 9 while waiting for patrons to slowly leave the premises two empty beer bottles were thrown towards me. One struck me at the bottom of my left leg and other bottle landed on the stage beside where I was standing... there were a large number of patrons. 15. Cst Yeo and I spoke to security guards. Cst Yeo recorded the details of the security guards in his official notebook. I spoke to the security supervisor, Zeyad HAMWI. I Said - "How many patrons are inside." He removed a clicker from his pocket and he looked down at the clicker. He Said - "369." I saw 369 displayed on the clicker. I Said - "What does this show?" He Said - "It shows the number of patrons that went in." I Said - "Where is the other clicker?" He Said - "Matt has the other clicker." Matthew Clark, security number 409563108 removed the second clicker from his pocket. I saw 1191 displayed on the clicker. I Said - "What does this represent?" Clarke Said - "Well the front digit is broken. 191 out." I Said - "So are you telling me there are 178 patrons inside this venue. Are you serious?" Clarke Said - "No it's actually broken." I checked the clicker and confirmed that it was broken. I took possession of this clicker. 16. I commenced an audit of the security guards which involved Cst Yeo recording the details of all the guards in his official police notebook. There was no standard uniform for the guards. The guards did not have a number affixed to the back of their shirts. The additional numbers that are required to be displayed were not all recorded in the security register. These identified issues do not comply with the current development consent condition. I took a series of photographs of the security guards. 17. I had a conversation with Cst Damien Welsh, He informed me that according to his calculation there were 1016 patrons inside the venue. He made this calculation after I tasked him to remain outside of the premises and count, by using a 'clicker' device all patrons who left the premises. I went upstairs and spoke to the licensee. 27. Police have major concerns in relation to the number of patrons that were inside the hotel. This presents major public safety issues. 31. Until the management of this hotel show an on-going level of compliance over a reasonable period of time then I would respectfully submit that the development consent trading hours are reviewed and strong consideration be made for the trading hours to be reverted to standard trading hours for hotels. 65 The affidavits of Sergeant Mort contained photographs of security personnel and the garbage bags obstructing the travel path to the exit door. Sergeant Mort in Paragraph 8 states: 5. About 12.40am, 26 May 2007, Constable Gardner and I attended DCM Hotel in relation to a business inspection. We entered the premises through the principle entranceway. I spoke to the licensee at the top of stairs near the cash register. There were patrons milling around the foyer area. There were two (2) DJS playing in separate parts of the hotel and patrons were dancing to the beat of the music. 6. Cst Gardiner and I attended the stair well that leads to the 'male' toilets and designated exit door. There are a series of steps that lead to this designated exit door. Above the designated exit door was an illuminated `exit' sign. At the base of these stairs and in front of the closed designated exit doors were 2 black plastic garbage bags. They were obstructing up-to 50% of the travel path to this designated exit door. I took 2 photos of these garbage bags. 8. I partially opened the designated exit door from inside the stairwell. I tried to open the designated exit door fully but I noticed an Otto bin with a red lid was behind the door. I could only open the designated exit door just past half way. The Otto bin was obstructing the operation of the door and the travel path of a designated exit. I looked out on to the laneway and I saw numerous Otto bins placed to the right hand side of the laneway. An Otto bin was resting on the ground and there was rubbish strewn on the laneway which included general rubbish and cardboard boxes. These items were obstructing the travel path leading away from the designated exit door. I noticed the ground was wet and very slippery. I had to walk carefully as I feared I may have tripped because it was so slippery. I took a series of photos of that display the rear lane way 10. The licensee explained the laneway was shared with Gloria Jeans and IGA. The licensee agreed to clean and clear the laneway. A cleaner assisted in the process and moved the Otto bins to the side. The licensee agreed the laneway was part of the exit. 13. About 1.25am, Saturday 2 June 2007, Constables Peter GURR, Donald YEO, Building Surveyor David Sharpe, Specialist Health Surveyor Elvis Keranovic and I attended DCM Hotel, 31-33 Oxford Street, Darlinghurst in relation to a business inspection. 14. We went to the rear laneway, which is part of the travel path leading away from a designated exit door. On the ground in the laneway were four (4) crates and a blue 'Otto' bin. These items were obstructing the travel path. There was also rubbish strewn on the ground. I took a photo of this laneway. 22. On the 29th July 2007, Surry Hills Licensing police organised a plain clothes licensing operation. It essentially involved detecting minors inside licensed premises. At 10.05pm it's alleged a minor was located inside the premises. The minor was conveyed back to Surry Hills Police station. The minor alleges she was not asked for identification as she walked through the entrance door. 23. I am aware from my dealing with the Premises of an incident where the designated exit door was obstructed. This matter is not subject to court proceedings but the incident was reported (police information report # 30602328) by Constable Karina Wells on 5 May 2007 where all patrons were evacuated through the rear exit because of a drive by shooting in the immediate vicinity at the front of DCM hotel. Police observed rubbish bags and boxes scattered all the way down the stairs which lead to a designated exit door and this made it difficult for patrons to exit the nightclub. Police requested staff to move all rubbish from the stairs leading to a designated exit and to ensure there was a clear path in the rear alley. I am also aware from my investigation of the file in relation to the Premises that: (1) There was an incident on 19 May 2007 reported by Sergeant Wharton that a large plastic bag was obstructing the rear designated exit door (refer to cops # E 30941842). (2) Licensing Police have asserted to me that there have been incidents of overcrowding. (3) Senior Constable Holt identified that there was no apparent control of smokers inside the venue and it appeared the whole premises was being used by smokers despite the new smoking legislation (refer to event # E 54169301). 66 On behalf of the applicant it was submitted that on a merit review the conduct of the operation is irrelevant, that is the conduct of the user/manager and if the Conditions of Consent are not complied with it is a matter for enforcement not whether the use should be allowed or not and that there are other means, classes of proceedings to provide for the necessary sanctions that are not relevant to these proceedings in Class 1. However, on the other hand, it was submitted on behalf of the applicant that the management has improved since November/December 2007 and seeks to rely on improved management as to why this modification application should be approved. 67 It was further submitted for the applicant that the conditions requiring acoustic testing were ambiguus however the applicant accepts that an acoustic report is required prior to operating. It was submitted that the conditions can and should be complied with and if the respondent is alleging default it was submitted that they can take Class 4 proceedings and that the only jurisdiction is to assess the application on planning grounds. 68 The Council submitted that a punitive outcome of these proceedings is not advocated but the application should be assessed on its merits. Indeed Class 4 proceedings have been commenced but adjourned to allow the Class 1 proceedings to be determined. It is also submitted by the Council that the trial period has continued to operate despite the refusal of the extension and that the trial period ceased in July 2007. 69 The respondent submits that the purpose of the trial period is to assess the operation and the modification application must consider the trial period. It was submitted for the Council at the trial period the applicant has exhibited a lack of compliance with the Plan of Management in concert with a lack of compliance with the Conditions of Consent. 70 It was submitted on behalf of the Respondent that concerns have not only been raised by NSW Police but local residents and the Council. It was further submitted that Mr Cooper made recommendations on the 1st February 2007 and that from the inspection in December 2007 these recommendations had not been implemented. And that Mr Cooper also considers having regard to the unsecured nature that it is reasonable to infer noise complaints because the system could not be guaranteed to be tamper proof. The respondent says that, one must question how an acoustic engineer could go out the weekend before a hearing and say that there has been compliance since the operation commenced. 71 For the respondent it was submitted the Conditions of Consent were formulated having regard to previous concerns to ensure that the amenity of the area would not be unreasonably impacted. It was further submitted when access was sought to the incident register that is to be kept on the premises, the security firm responded by saying they do not have it in their possession. It was submitted by the respondent that the operator/manager during the trial period should have shown good faith and complied with the conditions if an extension was to be sought. Findings 72 It is not a matter for me in these proceedings as to whether the trial period should have ceased 24 July 2007 but rather my assessment of the modification application is whether the extended late night and 24 hour of trading should be allowed into the future for a further 12 month period. 73 The role of the Court is to assess the merits of whether the trial period should be extended and a most relevant matter for consideration is whether the trial period has been satisfactory. It is recognized that a development consent runs with the land and is not issued in respect of an operator or manager. However my merits assessment of this section 96 modification application to extend the trial period of 24 trading requires consideration of whether the premises have operated in a satisfactory manner. Condition 7 states that a further application may be lodged for extended hours and that such consideration is to have regard to "compliance with development consent conditions, any complaints received and any views expressed by the Police". 74 In my merits assessment of the application I am bound by the Court of Appeal judgement of Zhang and Canterbury City Council [2001] NSWCA 167. This judgment is instructive as to the need to give the DCP "proper, genuine and realistic consideration" and on the appropriateness and purpose of trial periods. The following paragraphs are most relevant to my merits assessment of this s96 application. 75 The consent authority has a wide ranging discretion - one of the matters required to be taken into account is `the public interest' - but the discretion is not at large and is not unfettered. DCP 23 had to be considered as a "fundamental element" in or a "focal point" of the decision making process. A provision so directly pertinent to the application for consent before the Council as was cl 4.0 of DCP 23 was entitled to significant weight in the decision making process but was not, of course, determinative. 83 I do not see any necessary incompatibility between the imposition of a condition limiting a proposed use to a probationary or trial period and the statutory requirement that the decision maker "take into consideration" both the "likely impact of the development" and "the suitability of the site for the development". It is possible to "take into consideration" matters even though their full significance cannot be known with precision. 84 Where, as in this case, the nature of the development application is for the "use" of existing premises - and, accordingly, adverse effects are readily reversible - a probationary or trial period may be an appropriate exercise of the statutory discretion. 85 The implications of the approach adopted by Talbot J would unnecessarily limit the statutory power to permit development for a specific period where the full implications of the development are not known or cannot be stated with sufficient certainty. In any such case, the "likely impact" or "suitability" will never be capable of complete assessment. Indeed, that is the very purpose of the probationary or trial period. The scope and purpose of the Act is better served by permitting experimentation, at least in circumstances where adverse effects will cease if the development consent were not, in the event, extended. The focus is then on "likely impact" during the probationary period. 75 Based on the evidence before the Court I do not accept the applicant's reply to the contentions that "any non-compliances during the trial period have been rectified and do not justify refusal of an application for a further trial period, in circumstances where the applicant was not aware of many of the issues which have now been raised by the council and has since addressed all such issues". It is the applicant's responsibility to be aware of the conditions of consent. 76 Even if I acknowledge that there may be some ambiguity in condition five, for independent noise monitoring, this would not relieve the applicant of ensuring the sound limiter units were properly sealed at the rear. 77 I accept the evidence of Mr Cooper, the single expert in these proceedings, who was not satisfied that the intent of the conditions has been followed post-consent given the potential for access to the rear of the sound limiter units. 78 I accept the evidence of New South Wales Police that the trial period should not be extended. The affidavits and oral evidence provided to the Court identify numerous non-compliances with the conditions. 79 The conditions were formulated at the time of the approval of the nightclub in July 2006 in an attempt to minimise adverse impacts to allow the development to coexist in its context. The conditions included a trial period for 24 hour trading and the operation of the establishment during this time has not demonstrated that a continuation of the extended trading hours is justified. 80 In my merits assessment of this modification application for a further trial period of extended hours section s79C(1) (e ) - the public interest, is a relevant matter. Based on the evidence to the Court I have concluded the public interest is not served by further trial period. In particular, the non-compliance with the requirement of the rear fire emergency exit and stairs to be clear of obstructions in the event of the need for evacuation in an emergency. This coupled with the excessive number of patrons in the nightclub from time to time is of great concern. Potentially endangering lives cannot be tolerated. 81 During the trial period the nightclub has not consistently demonstrated a commitment to concern for patrons as illustrated above, or the local community. For example, the issue of queuing while not determinative has been a concern to residents. Based on the evidence to the Court in my assessment the extent of the queuing on occasions, in terms of numbers and length and the obstruction of the public domain, has been unreasonable and the nighclub did not respond in a timely manner. This is a matter that may be capable of being managed, however the narrow entrance of a single door entrance from Oxford Street and the lack of a foyer area to then ascend a flight of stairs to the first floor means that it is difficult to queue outside the subject premises (given the very short length of the boundary with the footpath). In my assessment a 40 meter queue suggested by the applicant's planner is not acceptable in the circumstances. 82 It would appear that the complaints of local residents have not been well received by security staff, who it is claimed have been abusive. A complaints register/book would also not appear to have been continuously kept. While the latter may not be a major issue at the same time it is symptomatic of the lack of regard and commitment to comply with conditions of consent. Similarly non-attendance at the Liquor Accord meetings. 83 The Council adopted the DCP for Late Night Trading in January 2008 and this requires "for proponents of 'high impact' night trading premises to demonstrate responsible management over time". The DCP also states that late night trading is a privilege and will only be approved where an ongoing commitment to good management is evident. 84 This DCP of 2008 also sets out requirements for trial periods and includes a period of grace from the termination of the trial period until the new application for extended hours has been determined. I am also not satisfied that the objectives are satisfied. in particular to ensure that a commitment is made by operators to good management through the implementation of robust plans of management. The applicant has not demonstrated this commitment. 85 I note that the above DCP was adopted after the modification application was lodged, and in the circumstances even if I give it less weight, the provisions of the LEP and 1996 DCP are also not satisfied. The LEP in clause 29 provides that late opening premises will not have a detrimental impact on the locality having regard to the objectives of the zone. The 1996 DCP states "to ensure late trading premises are located, designed and operated such that the use does not detrimentally impact on the general amenity and safety of the City". 86 Apart from the above provisions the Conditions of Consent for the nightclub in July 2006 states that in considering applications for further/extended trial periods to late-night trading compliance with conditions will be considered. And the conditions also include the plan of management. 87 The Court of Appeal judgement of Zhang provides clear guidance on the purpose of the trial period. The facts of this matter before me are not dissimilar in that the nature of the application is of existing premises and accordingly adverse effects are readily reversible and as such a probationary or trial period may be an appropriate exercise of the statutory discretion. While this application is for a modification to extend the trading hours for a further trial period only, nonetheless the principles apply. 88 I have concluded that on the evidence to the Court and my merits assessment that the applicant has not demonstrated that a further trial period of extended hours of trading is appropriate. The s 96 application is not consistent with a holistic reading of the planning controls outlined above and I am persuaded by the evidence of Mr Solomon, Sergeant Mort and Mr Cooper. 89 My determination of this modification application is that it be refused and the subject premises are to close at midnight in conformity with the standard hours set out in Condition 6 above. 90 Accordingly on the basis of my assessment above, the formal orders of the Court are: 1. The appeal in respect of the premises, formerly known as the DCM Hotel now, known as UN Sydney nightclub at Level 1, 31-33 Oxford Street, Surry Hills is dismissed. 2. The application to modify the consent issued 24 July 2006 to allow the continuation of the extended trial period for another twelve months is determined by the refusal of consent. 3. The exhibits are returned to the parties. ___________________ J. S. Murrell Commissioner of the Court kb/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.