Big Beat (Australia) Pty Ltd v Sydney City Council [2005] NSWLEC 306 | Case summary

1 This is a verbal judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Sydney City Council's refusal of a development application for a cabaret lounge at the premises known as 37-41 Oxford Street, Darlinghurst. The council refused the development application on the basis that the proposal was not consistent with its heritage provisions or its controls in terms of the guidelines of the Development Control Plan concerning the concentration of late night venues, and the requirements in the council's opinion at that time, of the BCA were not satisfied by the proposed development. 2 The Court commenced this hearing in March, and following the conclusion of the hearing, the matter was re-opened because the applicant had gained the use of a second exit to the subject premises. When the matter was first heard by the Court there was only one emergency exit provided to Oxford Street. The Court allowed the re-opening of the matter and the applicant agreed to pay the respondent's costs with respect to its costs incurred from that point in time. The Court directed that the experts confer and that the matter be renotified/advertised in accordance with council's advertising notification policy, that objectors be advised. 3 The original advertisement of the use of the subject premises as a cabaret lounge was advertised, and there were some 15 objections, together with some 30 pro-forma letters received by the council. When the matter was re-advertised, there were four objections received. The nature of the objections was that the proposal would be a proliferation of late night venues in Oxford Street; it would impact on the amenity of many of the residential apartment buildings in the vicinity; and it would be a use that would create noise and traffic in the area as well. 4 Two tenants of the subject premises also wrote objections saying that the proposed use would conflict with their businesses that are operated at the first floor level in the commercial office component of the subject building. 5 The Court carried out a site inspection and also inspected the offices of the objections. It is noted that there is a shared foyer area that provides access to the proposed cabaret lounge and the upstairs offices. 6 During the proceedings it has been clarified as to what would be the opening hours of the subject development, and the council has reconsidered the matter, and now has stated an opening time of 5 pm through till midnight. And has also considered it appropriate for a 12 month trial period, if the Court was minded to grant consent, for 18 months from midnight till 4 am. Initially the council's condition was for an opening time of 8 am till 5 pm and clearly there was a conflict with uses within the building premises. However, in respect of this matter, with the opening hours as proposed for a trial period for the nightclub are from 8 pm to 4 am, whereas the restaurant would operate from 5 till 8 pm and it is considered in the Court's opinion, that little conflict would occur between the office uses and the operation of this part of the premises for a nightclub. Furthermore, there are specific conditions for security and management plans. 7 There were a number of outstanding issues when the matter was first heard about the fire exits and the number of persons on the subject premises. 8 The application is for the use of what was the former Commonwealth Bank, a local heritage listed item under council's Local Environmental Plan, and the application includes the construction of a mezzanine level and the use of this and chamber for the purposes of a cabaret lounge. There are also ancillary alterations to the building as well. 9 Because of the heritage listing of the subject building, there was a Court appointed expert to the proceedings, Mr Graham Brooks. The applicant also had a heritage architect, Mr Staas, who gave evidence to the proceedings yesterday, and at the beginning of the hearing, Mr Steven Davies, a heritage consultant also provided advice on behalf of the applicant as did Mr Fletcher, a consultant town planner. 10 For the council, Mr John Poulton, the heritage officer, gave evidence to the Court, and the Court also heard from Mr Munty and Mr Kelly, who are building surveyors with the Sydney City Council. And on behalf of the applicant, Mr Kilmartin, a consultant fire engineer and Mr Lilli, also a BCA consultant provided advice in the form of written statements and oral evidence to the Court. A joint statement which was provided today in respect of the egress and the fire requirements, and BCA requirements, was prepared jointly between Mr Kelly, Mr Kilmartin, Mr Lilli, and Mr Riley of Sydney City Council, Mr Kelly's manager. 11 The development application seeks approval for the cabaret lounge to accommodate 450 persons. During the discussions between the fire and BCA experts, it was agreed that the premises as shown on the amended plans, (that is with the two fire exits, one on the western side of the subject premises and one through the main doors to the traditional banking chamber) then the total number of patrons is considered to be 400 in terms of the experts' concurring, and conferencing, and 20 staff members. Such that there would be a maximum at any one time of 420 persons on the subject premises. 12 It was also agreed that the proposal is satisfactory in terms of BCA requirements and fire emergency evacuation, subject to a management plan to include an emergency evacuation plan. 13 The subject site is zoned under the Sydney City Council LEP, Central Sydney Local Environmental Plan 1996 as city fringe. And there are a number of objectives relating to that zone, which this Court has had regard to. 14 Other relevant provision that the Court must take into consideration, and I have given it central focus, as required by the authority of Zhang v Canterbury City Council [2001] NSWCA 167, is the Development Control Plan for the Central Sydney area. In particular there are provisions relating to special controls for certain uses, including amusement arcades, brothels, restricted premises, late opening pubs and the like. The subject development application falling into the latter category. It is noted that the preface to the special controls under 9 in the DCP states: "The development of amusement arcades, restricted premises, late opening pubs, is only permissible in the city centre and city edge zone, which is the subject zone, and the following provisions are required to ensure that these uses are located, designed and operated such that the use does not impact detrimentally on the general amenity and safety of the city, that being the overriding objective of that section in terms of the concentration of premises." 15 In council's bundle of documents there is a report from council's planner on the proposal and this proposal provides a map of the location of the premises and other establishments within the area of the subject site. On this matter the Court has had consideration to Mr Lindsay Fletcher's evidence in this matter, and I agree with his assessment where he says that: "In my opinion the context of the existing uses within Oxford Street, the well recognised role of the locality as an entertainment precinct, represent exceptional circumstances that apply to consideration of the current proposal". 16 I am also cognizant of the overall objective of this part of the Development Control Plan, which is to ensure that uses are located, designed and operated such that the use does not impact detrimentally on the general amenity and safety of the city." 17 And I am satisfied that with the development application as proposed with the security and management regime proposed, and the fact that an 18 month trial period is proposed for the subject premises for trading from midnight to 4 am that the provisions of council's Development Control Plan have been carefully considered, and I am satisfied that the proposed development will not be inconsistent with council's guidelines in terms of its Development Control Plan. 18 Furthermore, I must have regard to the fact that this is an adaptive re-use of a building. There will be no change to the streetscape. It will not be the introduction of a new use, such that it will not detract from the streetscape of Oxford Street. The Commonwealth Bank is a most important heritage element in the streetscape identified in council's heritage plan for the area. In this regard the Court must consider the heritage LEP, and the heritage LEP is the Central Sydney Heritage Local Environmental Plan 2000 that applies to the subject site. This relates to the heritage inventory assessment report which was contained within the bundle and also tendered as a separate exhibit. It means the relevant heritage assessment report in relation to a heritage item, or a building in a heritage streetscape prepared as part of the City of Sydney Cultural Heritage Database. (This was Exhibit 13 to the hearing, and also tab 6 of council's bundle). The controls of the heritage LEP include: "(a) The consent authority must not grant consent to a development application required by cl 7 unless it has taken into consideration the heritage significance of the item and of the heritage streetscape concerned.

Of medium significance is the mezzanine, first and second floor planning configuration." 24 The Court has had regard to the provisions of the inventory. In my consideration of the application, and in heritage terms, I am satisfied that the proposed development is one that will not impact on the heritage significance of the building. Clearly there will be some changes to the building, and in this regard I have been assisted by the experts in terms of those changes, and as to whether they are sympathetic to the building. 25 It is also important in terms of cl 11(B) that I pay particular attention to the fact that the proposal must exhibit design excellence and is superior to the quality of the existing heritage item. I am satisfied that the introduction of a mezzanine, whether that be option 1 or 2 which I will refer to later, is appropriate in the circumstances of this case, to provide for an adaptive re-use of the heritage building without significantly impacting on the building, and the proposal in terms of the detail of the design to allow for the adaptive re-use, does exhibit design excellence, and it will be a superior quality to the existing heritage item, as I see it today. 26 At the end of the proceedings it was agreed that the eastern fire stair could in fact be deleted from the subject proposal, and the heritage experts were all in agreement that one would gain a greater appreciation of the spatial quality of the former banking chamber. There were two options presented to the Court yesterday afternoon. 27 Option 1, was the mezzanine, slightly reconfigured to the more eastern portion of the building, but to allow for the pillars within the banking chamber to still be appreciated, rather than hidden behind the fire exit. The experts agreed this provided for an opportunity in terms of the mezzanine level and an appreciation of the internal detailing. Mr Brooks considered that the mezzanine should be read as is shown on the plan that he prepared, as a new insert. And the proposal with the open stairs from the front going up to the mezzanine, which would read as a relatively lightweight structure and clearly a new element within the banking chamber and he preferred this option. Mr Staas thought of the curved mezzanine as proposed, provided for a greater appreciation of the spatial quality. He did comment that there will be an intrusion into the spatial volume of the chamber, but it will still allow for the spatial quality in a linear sense to be appreciated and read, and importantly it will be seen as a new element. Mr Brooks was of the opinion that option 2, which is the option to provide for a mezzanine at the rear of the banking chamber would dominate the spatial appreciation in the form of appearing as a gallery rather than necessarily a distinctive new element. Mr Poulton preferred option 2, which is the gallery style mezzanine, as opposed to the curved mezzanine that we see on Mr Brooks' plan. 28 In my assessment and having regard to the heritage experts, the mezzanine certainly will be understood as a new element, and in particular it will be read as a new modern element with the curved mezzanine structure as we see in option 1. I agree the removal of the eastern fire exit will also allow for a greater appreciation of the spatial volume of the heritage building in terms of the banking chamber. I am persuaded that option 1 is the preferred option, and it is the option that I consider an amended plan should be based on to reflect the removal of the fire exit, and those changes as proposed in the plan drawn by Mr Brooks. 29 I am satisfied that the mezzanine will allow the interpretation of the banking chamber, and it will clearly read as a new design element in the volume of the space. I am also conscious of the fact in having regard to the heritage LEP, that at the moment the existing spatial area has been somewhat modified in terms of the original building and while there will be some impact with the mezzanine, it is not one that would warrant refusal of the development application. I am satisfied option 1 on balance will provide for an appropriate adaptive re-use of the heritage building. The spatial arrangement of the chamber will still shine through in terms of the visibility and the expanse of the banking chamber as it was constructed. 30 From the plans that were originally brought to the Court there has been significant working through of a number of the heritage issues, including the foyer area, and the treatment of the doors from the foyer area and the chamber for noise attenuation et cetera, and I am satisfied and guided by the heritage experts that the proposed development in heritage terms is one that is satisfactory and warrants approval. 31 The council raised other issues in the proceedings that I must have regard to, and this includes the city zone objectives. In this regard I agree with Mr Fletcher's assessment that there will be no change in the built form and that the character of Oxford Street will not be adversely impacted and it is consistent with the existing streetscape. Furthermore the proposed use is appropriate for a city fringe location. Issue two, the heritage, I have already dealt with in terms of the development application. However, there is a need before the Court issues any formal orders, for the receipt of an amended development application to reflect option 1. 32 Issue three was the concentration of late opening establishments, and in this regard I have given the Development Control Plan, central focus, but the circumstances of this case are such that I am satisfied that the proposed development is one that will not be inconsistent or antipathetic to the guidelines of the DCP in this regard, and it provides for an appropriate re-use of the subject building. 33 Issue four was the Building Code of Australia and as I stated earlier, the four experts conferred in this regard and they have advised the Court that they are satisfied with the plan as now submitted, and that it meets their requirements. In that regard it has been agreed between the parties that there be a maximum of 420 persons on the premises at any one time, with a maximum of 400 patrons. So in fact if there happened to be more than 20 employees or entertainers, there would be less number of patrons accommodated in the establishment. 34 With respect to issue five which is the public interest that relates to the BCA and I am satisfied that has already been adequately dealt with by the experts. In respect of the submissions that have been received, the respondent conceded that an 18 month trial period would in many respects overcome concerns about noise and the impact on the amenity of the area and clearly in the 18 month trial, the applicant must demonstrate, that the development can co-exist in terms of the residential apartments within the vicinity of Oxford Street and Poplar Street. In this regard the 18 month trial period is appropriate in the circumstances of the case and it also allows for the application to be reassessed at the end of that trial period. Such an assessment will also have factored in the performance or operation of the establishment during the 18 month period. 35 As I stated when this matter first came to the Court in March, there were a number of outstanding issues. But like many applications that come before the Court with the assistance of experts and effective conferencing many issues may be resolved or amendments may in fact be incorporated to ensure that a proposed development is satisfactory. This is an instance of such where there has been conferencing to focus the minds of the experts as to what would be appropriate and acceptable. There was discussion during the proceedings about the location of the toilets being in an inconvenient location. They may not be the most conveniently located toilets, but this is not a matter that would warrant refusal of the application. The Court was concerned about evacuation from the toilet area, however, the experts have provided evidence to the Court and I am satisfied and rely on their expertise in this regard. 36 To my mind and through the assessment process I am satisfied that there are no outstanding issues that would warrant refusal of the application. And the Court, as agreed to between the parties, will await an amended plan to be submitted within 14 days of today's date, to reflect option 1 drawn by Mr Brooks for the mezzanine level, which also shows the deletion of the eastern fire access or egress. The conditions are as generally agreed to between the parties, that is: a maximum of 420 persons on the premises at any one time; a trial period; and the need for a management plan and evacuation plan to be finalised to council's satisfaction and approval. The Court also requires the respondent to advise that the amended plan reflects the Court's decision, and the conditions also are as finally agreed to between the parties and as discussed during these proceedings. 37 On the receipt of the amended conditions and the amended plan I will issue formal orders in chambers, and the formal orders will be:

Big Beat (Australia) Pty Ltd v Sydney City Council

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Parties

Cases Cited (1)