Land and Environment Court New South Wales Medium Neutral Citation: Jasa 1 Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1061 Hearing dates: 8 April, 2013 Decision date: 12 April 2013 Jurisdiction: Class 1 Before: O'Neill C Decision: Preliminary findings Catchwords: DEVELOPMENT APPLICATION: use of the premises as a licensed bar; surveillance camera at the public entrance to the building; absence of consent from the Owners Corporation for works to the common property. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: The Northern Eruv Incorporated v Ku-ring-gai Council [2012] NSWLEC 249 Goldberg v Waverley [2007] NSWLEC 259 Category: Principal judgment Parties: Jasa 1 Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel Mr M. Staunton (Applicant) Dr S. Berveling (Respondent) Solicitors Gadens Lawyers (Applicant) Council of the City of Sydney (Respondent) File Number(s): 11053 of 2012 Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. D/2012/1007 for the use of the basement as a licensed bar and function centre (the proposal) by the Council of the City of Sydney (the Council), at 45-47 York Street, Sydney (lot 1 in Strata Plan 42495) (the site). 2The appeal was subject to mandatory conciliation on 6 December 2012, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As an agreement was not reached during the conciliation phase, the conciliation conference was terminated on 18 January, 2013, pursuant to s34(4) of the LEC Act. Following amendments made to the proposal during the s34 conciliation phase and leave granted by the Court for the applicant to rely on the amended proposal, there remains one condition of consent in dispute between the parties. Issues 3The Council's remaining contention is that consent cannot be granted unless the applicant can demonstrate that it has approval from the Owners Corporation to install a surveillance camera at the public entrance to the building to provide surveillance of an area within a 10m radius of the public entrance to the building. Approval from the Owners Corporation is required, as the cabling and camera will be located on common property, outside the boundaries of the site. 4The Council says that approving the proposal without the certainty that a surveillance camera will be provided would not be in the interest of public safety and security. 5The applicant contends that the Owners Corporation will most likely unreasonably refuse its consent to the works on common property in order to stymie the development, as they object to having a licensed bar and function centre in the basement. The site and its context 6The site is located in the basement level of the AWA Building at 45-47 York Street, Sydney. The building provides 12 levels of office accommodation and the ground floor is used a shop and entrance lobby. The basement is accessed via a staircase and a lift from the entrance lobby. 7The site has frontages to both York Street to the east and York Lane to the west. There is a Council 'smart pole' in the footpath adjacent to the public entry to the AWA Building. Background and the proposal 8The proposal is to use the basement level to a licensed bar and function centre, including the installation of an accessible toilet and plumbing to the drinks bar. 9The applicant submits that there are three options for the Court to grant consent to the proposal; firstly that consent is granted by deleting condition 16 'Closed Circuit Television'; secondly, that if the Court finds that the camera is required, it can be located on Council's smart pole and an application has been made under s138 of the Roads Act (NSW) 1992 (the Roads Act) to do so; or thirdly that a deferred condition of consent requiring that the consent shall not operate until such time as evidence is submitted to the Council to demonstrate that the applicant has all necessary approvals to install, operate and maintain a surveillance camera at the public entrance to the premises within 3 years. 10The Council submits that the Court, pursuant to s39(2) of the Land and Environment Court Act (NSW) 1979 (the Court Act), does not have the power to grant consent to the provision of the camera attached Council's infrastructure, the smart pole (The Northern Eruv Incorporated v Ku-ring-gai Council [2012] NSWLEC 249 and Goldberg v Waverley [2007] NSWLEC 259). 11If the surveillance camera is located on common property at the public entrance to the building, the applicant proposes that the camera be located in the soffit lining of the projecting arm (the cascading art deco motif) at the southern end of the glass awning on the York Street façade and that any wiring to the camera will be concealed. Planning Framework 12The site is zoned City Centre under the (now repealed) Sydney Local Environmental Plan 2005 and is located within a 'City Living Area' under the City of Sydney Late Night Trading Development Control Plan 2007. The site is zoned B8 - Metropolitan Centre under the Sydney Local Environment Plan 2012 (LEP 2012). The proposal is permissible with consent. 13The AWA Building is listed on the NSW State Heritage Register (SHR) as an item of State heritage, pursuant to the Heritage Act (NSW) 1977 and as a local heritage item, Schedule 5 of LEP 2012 and it is located within the Wynyard Park/Lang Park Special Character Area. Public submissions 14Two objectors provided evidence on behalf of the Owners Corporation. Their objection is to the use of the premises as a licensed bar and function centre. 15Sergent Russell from the NSW Police Force, The Rocks Local Area Command provided evidence on site. His concerns can be summarised as follows: * The entry and exit to the premises are limited and this may provide difficulties in the event of an incident on the premises and evacuating the premises; * There are already a number of licensed venues in the area and there are existing issues with alcohol-related incidents in the area; and * A security guard should be positioned at the entry to the building at street level. Expert evidence 16Mr Peter Shields provided expert evidence regarding Council's smart poles and Mr Philip Jamieson provided expert planning evidence on behalf of the Council. Mr James Lidis provided expert planning evidence on behalf of the applicant. 17Mr Jamieson says that any proposal to substitute the requirement for a surveillance camera with a requirement for a security guard would not be appropriate, as a security guard may be distracted by an incident and would then not be able to provide surveillance of the area around the public entry to the building. He says that a camera provides passive surveillance of the area and this is a standard requirement for licensed premises. 18The experts agree that it is feasible to locate the surveillance camera on the smart pole in the footpath outside the premises. According to Mr Lidis, Ausgrid will charge a flat rate to provide power to the surveillance camera on the smart pole. 19Mr Shields says that the purpose of the smart pole design is to consolidate public infrastructure onto a standard pole, using standardised components, in order to reduce clutter in the public domain. He says the Council relocates poles, when required, generally for optimal and efficient street lighting purposes. In Mr Shields' opinion, it is possible that the smart pole outside the AWA Building will be relocated in the future and the camera, owned by the applicant and attached to the pole, would then not be in a position to provide surveillance of an area in a 10m radius of the public entry to the AWA Building. He says that the proposal to locate a privately owned surveillance camera on the Council's smart pole undermines the purpose of the smart pole design to de-clutter the public domain, as the Council requires flexibility in locating and accessorising their smart poles. 20According to Mr Shields, the existing surveillance cameras on smart poles form part of the infrastructure of Council's 'Street Safety Camera Program', which is described by the Street Safety Camera Program Code of Practice 2011 (Exhibit 7). Mr Shields says that there are currently no privately owned surveillance cameras attached to smart poles. 21The applicant says that the Council charges a promoter a fee for advertising banners, attached to smart poles, to promote an upcoming event. Mr Shields agrees, however he says the banners remain the property of the Council, the arrangement is temporary and this policy does not constrain the future relocation of an individual smart pole. 22Mr Lidis agreed on site that Sergent Russell's suggestion, that security personnel be located at the public entry to the AWA Building, could be accommodated by amending the Plan of Management to specify the location of the security guard referred to in clause 32. Preliminary Findings 23I accept Mr Jamieson's evidence that a surveillance camera is required at the public entry to the building and that condition 16 of the (without prejudice) conditions of consent (Exhibit 5) should not be deleted. At this stage, I am not minded to grant consent to locating the surveillance camera on Council's smart pole. I have deferred consideration of this option until the applicant has pursued my preferred option of gaining owners consent for works to common property to locate the surveillance camera on the building. 24I am satisfied that the proposal to locate the surveillance camera in the soffit lining of the southern projecting arm of the awning on the York Street façade is acceptable and it will have no impact on the identified heritage significance of the AWA Building. 25As development consent cannot be granted in the absence of the approval for the works to common property, I propose that this matter is re-listed before me at 10am on Tuesday, 16 July, 2013, to allow time for the applicant to obtain owners consent from the Owners Corporation for the works to common property. Should the Owners Corporation unreasonably refuse its consent to the works to common property, then the applicant may make an application to the Consumer, Trader and Tenancy Tribunal (CTTT) for an order by an adjudicator under s140(2) of the Strata Schemes Management Act 1996, to obtain approval for the works to common property, to locate the surveillance camera (and any associated wiring) in the soffit lining of the southern projecting arm of the awning on the York Street facade. Alternatively, the applicant may pursue any other appropriate avenue to overcome the issue of a lack of owners consent for the works to common property. 26If owners consent is obtained for works to the common area, for a surveillance camera at the public entrance to the building and on filing of the consent, the orders of the Court will be: 1.The appeal is upheld. 2.Development Application No. D/2012/1007 for the use of a basement as a licensed bar and function centre including the installation of an accessible toilet and plumbing to the drinks bar is approved. 3.The exhibits, other than exhibits 5, 6 and B, are returned. 27Clause 32 of the Plan of Management (Exhibit B) is to be amended to specify that the security guard, referred to in this clause, is to be located at the public entry to the building. ____________ Susan O'Neill Commissioner of the Court ********** 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. Decision last updated: 12 April 2013