Borg Architects Pty Limited v Council of the City of Sydney - [2009] NSWLEC 1305 - NSWLEC 2009 case summary — Zoe

NSWNSWLEC

Borg Architects Pty Limited v Council of the City of Sydney

[2009] NSWLEC 1305

Land and Environment Court (NSW)|2009-09-07|Before: Mr P

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2009-09-07

Before

Mr P

Source

Original judgment source is linked above.

Judgment (64 paragraphs)

[1]

The application 9 The two elements on the ground floor of the building fronting Oxford Square, located to the west of The Gaff had, until recently, operated has a medical centre. The basement area under this space has formed a part of The Gaff for some time, the period being irrelevant for the purpose of these proceedings. The present application seeks to merge this ground floor space to become part of The Gaff. 10 In doing so, the proprietors of The Gaff also seek changes in two specific aspects of the operation of The Gaff. The first is that they seek an increase in the present permitted maximum number of patrons from 447 to 529. Second, as part of the physical alterations to join the two spaces and merge the floor area of the former medical centre into The Gaff, they seek to create, in the space of the two elements of the building that formerly comprised the medical centre, an open area separated from Oxford Square by a glass balustrade with folding doors, so that this area can be used as a smokers' terrace. This area would be isolated from the main area behind and be accessed by an airlock designed to prevent sounds from the nightclub escaping from the premises through the smokers' terrace. This smokers' terrace is proposed to be in the more western part of the Oxford Square frontage of the former medical centre.

[2]

11 In addition, the entrance to The Gaff is to be relocated from its present location in the eastern elements of the frontage to Oxford Square to a point in the more eastern of the two former medical centre elements. This entrance will also be constructed with an airlock designed to prevent sound leaving the premises. The present entrance to The Gaff has no such physical constraint on sound being emitted from the premises.

[7]

The proposed internal works 17 It is proposed to remove and rearrange the internal spaces of the ground floor of the building. A number of internal partition walls that had been erected for the purposes of operation of the western element of the premises as a medical centre have already been removed but, as the applicant did not undertake this removal, no issue arises with respect to that. 18 The applicant also proposes to remove a wall between the existing ground floor operational area of The Gaff and the former medical centre so that all the ground floor space, subject to the exclusion of smokers to the proposed smoking terrace and the creation of the airlocks for the entrance to the smoking terrace and the relocated primary entrance to the premises, would be available for use by patrons of The Gaff. In the interior of the western portion, it is also proposed to construct a small, enclosed lounge area to which, it is said, patrons will be able to remove themselves if they wished to seek a quiet space. The site inspection 19 The proceedings commenced with a site inspection that involved in a walk-through of both levels of The Gaff; an inspection of the Oxford Square area and that portion of Oxford Street immediately to the west (to see the position of the florist's shop mentioned earlier in this decision); a walk along Burton Street to Crown Street; and a walk down Riley Street, to the north, as far as Liverpool Street. The walk-through of the premises included walking along the private rear laneway attached to the adjacent building and entering the basement of The Gaff through doors from this laneway. In addition, at tables and chairs in the former medical centre, I heard informal evidence from a number of the resident objectors (discussed later). I was also shown a video of a fight that had recently taken place in Oxford Square late one evening. 20 Further video material was foreshadowed during this informal evidence and was subsequently tendered. Amongst other things, it depicted somebody apparently walking down the side of The Gaff, into the private laneway and urinating against a wall. The written objections 21 Part of the material tendered by the council (in three volumes) comprises three types of written objection to the proposal. These comprise objections at the assessment phase of the original development application; objections at the s 82A review stage; and, finally, objections that have been lodged with the council in specific anticipation of these proceedings. I have carefully read all of these objections.

[18]

32 Although Mr Kondilios made the concession on behalf of the council concerning the basis upon which I should make an assumption, based on his concession, concerning the conduct of the premises and management of patrons of The Gaff, it will be clear from what follows in these reasons that the conclusion I have reached would not have been influenced, in any fashion, by the present management strategies adopted for The Gaff. 33 The disentitling conduct, that I have concluded would be made worse if the increase in numbers were to be permitted, is conduct that is, on the applicant's own security adviser's evidence, outside its ability to control, mitigate or remedy. As a consequence, on this issue, at least, any nighttime view would have been entirely irrelevant to this conclusion. Planning legislation and controls 34 The Act makes provision for me to consider the social impacts in a locality when undertaking a merit assessment pursuant to s 79C of the Act. The relevant words of the section are: (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) … (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality 35 Obviously, in this context, there is a necessity to consider what comprises the locality for these purposes. This is discussed further later in this decision. 36 Prior to the absorption of South Sydney Council into the City of Sydney, Oxford Square was in the former South Sydney local government area and, as a consequence, the provisions of the South Sydney Local Environmental Plan 1998 (the South Sydney LEP), now administered by the council, continue to apply as do the provisions of the South Sydney Development Control Plan 1997 (the South Sydney DCP). 37 In addition, the council has developed the City of Sydney Late Night Trading Premises Development Control Plan 2007 (the Late Night Trading DCP) specifically for the purposes of regulating late-night trading in designated areas, including the area along Oxford Street and Oxford Square including The Gaff. The Late Night Trading DCP sets out, in cl 2.1, its main aim. It does so in the following terms: The main aim of this DCP is to assist in the management of the impacts of late night trading premises on the sites and neighbourhoods in which they are located, and in particular, protect the amenity of residential properties. 38 The relevant objectives of the Late Night Trading DCP, from cl 2.2, are: (a) …………; (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; 39 Clause 2.4 of the Late Night Trading DCP categorises the premises as Category A premises - High Impact because The Gaff is: An on-licence within the meaning of the Liquor Act 2007 where the primary business or activity carried out on the premises is that of a night-club with a capacity of more than 120 patrons

[20]

41 The Late Night Trading DCP, on my reading of it, has a primary focus on the regulation of trading hours for such premises and the assessment and approval process for alterations to such trading hours. The Late Night Trading DCP says: The provisions of this DCP do not set out to curb or increase potential trading hours in a blanket fashion throughout the City, but allow opportunities for late night trading hours in appropriate locations and with appropriate management actions. 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 the operation of premises. 42 It is fair to say, however, that the Late Night Trading DCP is also significantly concerned about protecting sensitive land uses, such as residential land uses, from the impact of antisocial behaviour by patrons of such late-night entertainment venues. 43 As to the emphasis I should give to the Late Night Trading DCP and to the South Sydney DCP (discussed later), Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a development control plan in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at para 75, three propositions emerge. First, although the Court has a wide ranging discretion, the discretion is not at large and is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan. Thirdly, a provision of the development control plan directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

[23]

46 As noted below, question of whether or not there will be any additional impact caused by the proposed increase in patron numbers on the present levels of unacceptable antisocial facility in the locality or whether the applicant's proposed security management plan will prevent such impacts is the fundamental issue at this stage of these proceedings. 47 The zone objectives for Zone 3 - the Business Zone under the South Sydney LEP contain a number of objectives. Two of these are dealt with, in combination, by Mr Chambers in his expert report. These are objectives (a) " to encourage suitable types of mixes of business activities including retail, commercial, professional and entertainment-related land uses that increase employment opportunities and contribute towards the economic and social vitality of the area" and (c) " to improve the amenity and accessibility of commercial strips and centres from residents, workers and visitors in those areas" 48 With respect to the interaction of these two objectives, Mr Chambers said: Objective (a) encourages a mix of business activities including " entertainment-related land uses " [my emphasis] that contribute to the "economic and social vitality of the area". This is not to say that one objective takes precedence over another but rather, that there needs to be a balanced assessment of the proposal against all of the objectives of the Business zone. In the subject case, it boils down to the implementation of an effective Security Management Plan to ensure that this particular entertainment-related land use can be carried out as proposed with minimal impact on the area. 49 However, in the context of activity, as later discussed, where there is not already more than a "minimal impact on the area" from the totality of the entertainment-related land uses in the locality but where there is an unacceptable impact from such activities, in my view the question that arises is not that discussed by Mr Chambers but is whether the proposed activity is going to cause any increase in those already unacceptable levels of antisocial impacts. 50 Also relevant are a number of provisions in Part D of the South Sydney DCP. They reinforce the conclusion set out in the immediately preceding paragraph - of particular relevance is the second of the performance criteria that specifically requires the avoidance of exacerbation of existing negative social impacts. These provisions of this DCP are the following terms: 6. Cumulative Impacts and Trade-Offs Objectives * To manage cumulative impacts arising from development activity and implement strategies to avoid or minimise these. * To identify negative social impacts of development proposals and develop avoidance, minimisation or mitigation measures to address these. * To maximise the benefits of development proposals to the local community. Performance criteria * Development takes into account cumulative impacts of past development activity and does not exacerbate existing negative social impacts or issues. * Development identifies and responds to opportunities to benefit the local community and provides measures to mitigate against negative impacts.

[31]

63 Is clear from this map that the locality of the sphere of influence of The Gaff extends, into the streets to the north, north-east and east well beyond the 50 m sphere of influence able to be the subject of The Gaff's security management personnel. 64 I did not understand that the accuracy and appropriateness of this plan was questioned by the evidence of any of the applicant's witnesses. If I be wrong on this point, I am satisfied that the evidence discussed below factually demonstrates that unacceptable antisocial street behaviour is presently occurring by people who are specifically attracted to attending The Gaff or who are patrons departing from The Gaff and who are doing so through the network of streets set out in this map beyond the immediate locality of Oxford Square and The Gaff. 65 During the course of the on-site evidence taken informally, Mr Kondilios also specifically requested those giving informal oral evidence to confine their comments, to the extent that they were able to do so, to behaviour that they specifically attributed to patrons of or their activities or the noise emanating from The Gaff. Although he made this request, some of that informal evidence was still general in nature. 66 In addition to the resident evidence given during the course of the site inspection, the council has also tendered a large number of written objections from a wider range of people than those who gave oral evidence in the proceedings. These objections generally dealt with antisocial behaviour, of a variety of types, including such behaviours at some distance from The Gaff. 67 Two of the objectors who gave oral evidence during the course of the site inspection, are residents in the vicinity of the mid-block street closure in Riley Street to the north of Liverpool Street. The location of their houses is significantly beyond any 50 m sphere of influence and, in general terms, is likely to be somewhat beyond a 100 m radius from the premises. One of these residents also provided an extract from a diary kept by his wife which diary dealt with the occasions when their sleep had been disturbed as a result of passers by making noises during the night.

[53]

98 However, as discussed by Preston CJ in Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99; (2006) 144 LGERA 408, I am entitled to have regard to past conduct for limited purposes. Those purposes are confined to the question of whether or not the terms of a development consent will actually operate, effectively, to control behaviour that is otherwise unacceptable. In this instance, I am able to reach a conclusion as to whether or not the new plan of management would have the effect of improving the behaviour of the patrons of The Gaff in the vicinity of Oxford Square (that is within the 50 m sphere of influence discussed by the witnesses). I consider it likely that that behaviour would be improved although whether or not it would be acceptable is, in my view, not necessary to be determined at this stage given the conclusion that I have reached concerning the unacceptability of behaviour by patrons of The Gaff outside this sphere of influence. 99 Had the question of behaviour within the sphere of influence been the only issue, it is possible that some trial at an increased numerical level would have been considered. However, I have not turned my mind to whether or not such a position would be appropriate because I am satisfied that the behaviour of patrons of The Gaff outside that sphere of influence is unacceptable and would be made worse if patron numbers were increased. Behaviour outside the 50 m sphere of influence 100 The unacceptable behaviours outside of the sphere of security influence of The Gaff is as discussed earlier and, it is reasonable to assume includes singing and/or chanting, loud conversations, coupled with various inappropriate and antisocial physical acts in public places or in people's front setbacks. 101 If this level of antisocial behaviour in the locality is, at present, unacceptable (as I accept it is - whether caused by patrons of the Gaff or more generally), it is, in my view, inevitable that that behaviour will not be diminished if there is an increase of some 25% in the number of permitted patrons for The Gaff. Indeed, logic dictates that it is inherently probable - indeed inevitable - that such an increase will also lead to some increase in such behaviour (of no matter what dimension). 102 It is not necessary that I quantify the extent of the increase - merely that there is sufficient probability that there will be an increase of some unquantified nature and that this will also be an increase of some unqualified (but inevitably unacceptable) nature thus rendering it inappropriate to permit any increase in patron numbers. Such a position is on all fours with the approach of the two DCPs discussed earlier.