Borg Architects Pty Limited v Council of the City of Sydney

DATES OF HEARING: 25, 26 and 27 August; 7 September: 11 October and 12 November 2009

APPLICANT Mr P McEwen SC INSTRUCTED BY LEGAL REPRESENTATIVES: DLA Phillips Fox

RESPONDENT Mr S Kondilios, solicitor Maddocks Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10143 of 2009 Borg Architects Pty Limited v Council of the City of Sydney

JUDGMENT 1 SENIOR COMMISSIONER: The location and general circumstances of the premises of the nightclub known as The Gaff are set out in my earlier decision (see Borg Architects Pty Limited v Council of the City of Sydney [2009] NSWLEC 1305) in which I refused an application to permit an increase in patron numbers allowed within the nightclub.

2 However, in addition to the proposal to increase the number of patrons permitted within the premises, the application also includes an extension of the upper level operation of The Gaff into adjacent premises, within the same row of former 19th century shop frontages in Oxford Square, comprising that element of the terrace at the ground level to the west of the present portion of the terrace occupied by The Gaff. The Council of the City of Sydney (the council) also opposes this element of the application.

The issues in this stage of the proceedings 3 The issues that remain with respect to the application to expand into the adjacent premises are: o Whether the proposed alterations to the facade of the area to the west in order to accommodate the introduction of the proposed smoking terrace will have an adverse impact on the heritage value of that element of the terrace? o If there is an adverse heritage impact, is it unacceptable? o If there is an adverse heritage impact and it is unacceptable, do the benefits of making the new plan of management enforceable by incorporating it into the conditions of development consent provide sufficient public benefit to counterbalance the heritage impacts to the degree necessary to render the proposal, on balance, acceptable?

The building works proposal 4 The building works proposed would add about 173 m² to the operational area of The Gaff. Part of this space would be given over to additional lavatory facilities activities in the general bar area; the creation of a 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; and a "quiet lounge" behind the smokers' terrace. The smokers' terrace 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. The existing entrance would not be used late at night and the use of the new airlock in substitution would reduce noise impacts outside the premises. The heritage issue 5 The heritage experts, Ms Desgrand for the council and Mr Rappaport for the applicant, dealt with the extent to which the original, heritage fabric might be impacted by this proposal. Essentially, in the apertures in the facade of the building that are presently glazed, the elements that remain are the columns and arches but not the original glazing and detailing. 6 The original shopfronts would have had recessed doorways with additional columns combined with a glazed return panel to a doorway set somewhat back from the building facade. The present proposal retains all of the existing heritage fabric but has it viewed, from Oxford Square, in a different design context. 7 Importantly, although not discussed by the experts, it should be noted that the original facade of the building portion that is the subject of this application, excluding the glazed shopfront and entry elements, appears to be significantly unchanged from that which is depicted in the earlier photographs attached to Ms Desgrand's statement of evidence. In this regard, it is appropriate to note, in passing, that the rearranged signage for The Gaff on the Oxford Square frontage is proposed to be relocated, in conjunction with some additional signage, to a location that is more sympathetically located on the facade of the building and is, with one minor exception, consistent with that which is proposed by the council in the council's without prejudice conditions of consent. 8 The single difference between the proposal and the council's conditions concerns the larger sign with the words "The Gaff" - running from the lower left corner to the upper right corner. This sign comprises the existing sign, reduced in its vertical dimensions, to fit in its new location. The present design is mounted on steel batons some 50 mm proud of the facade of the building. The council proposes that this sign should be mounted flush with the building. I was informed that the reason for the 50 mm separation was to allow for the fact that the sign (being the present sign but merely modified in its vertical dimensions) has some electrical element to its operation that requires a space behind it for heat dissipation. 9 Given the more sympathetic location and the minor adjustments to the size of the sign, together with the fact that it is merely a relocation of a present, apparently, approved sign of what will become now modestly smaller dimensions, I do not consider that it is appropriate to require it to be flush mounted with the wall.

10 Ms Desgrand gave detailed evidence of what she considered would be an appropriate alternative design, if there were to be a smoking terrace at the location proposed in the western building element facade. During the period between the completion of the first phase of the hearing (dealing with permitted numbers for the premises) and the resumption of the process to deal with the proposed expansion to the west, the management of The Gaff undertook to have prepared, for my information, plans which reflected implementation of that which Ms Desgrand proposed in her earlier evidence. 11 During the resumed hearing, plans demonstrating what might be done in response to her evidence, in what was said to be a structurally acceptable fashion, were tendered on behalf of the management of The Gaff. To comply with the statutory requirements for the minimum amounts of space open to the elements for a smoking terrace, the necessary design, offered on an indicative basis (rather than being proposed as an amendment to the application), was clearly less desirable than that in the application being dealt with in the proceedings.

12 Nothing in the present design proposes interference with or removal of any of the existing heritage fabric. Nothing in the present proposal is irreversible. The elements of signage as proposed are, modestly, more sympathetic than the present signage.

13 The application also proposes replacement of the existing heavy timber framed doors to the present premises occupied by The Gaff with the new doors being somewhat (but not extensively) less chunky and more sympathetic than that presently there. While there is some concern expressed by Ms Desgrand that the elements of heritage fabric (with which there is to be no interference) may suffer ongoing deterioration through weather impacts, this is a risk that exists whether or not the present proposal is approved.

14 Overall, I have concluded that the presentation of the buildings fronting Oxford Square will be altered, necessarily, from their present appearance if the application is to be approved. However, the present appearance of all of the elements of this terrace has already been significantly modified and no longer reflects the original shopfronts. There is to be no adverse impact on the heritage facade of the buildings or on any of the heritage fabric that remains. None of the works of that are involved in the application, to the extent that they interact with the heritage fabric, are irreversible. To a very modest extent, the signage alterations and the replacement of the doors to the existing operational area of The Gaff will be improvements in the heritage setting fronting Oxford Square.

15 I have therefore concluded that, although there may be some modest visual heritage difference, it is not such as to warrant refusal of the application nor to require amendments to it.

16 For completeness, I should deal with the proposition advanced by Ms Desgrand (and also discussed elsewhere in the council's planning evidence) that there might be better locations within expanded premises for The Gaff where a smoking terrace might be located. Put bluntly, this is irrelevant. I am obliged to make an assessment of that which has been applied for and to determine, within the relevant planning framework, whether that which is proposed is acceptable or not. 17 Consistent with the approach taken by the Court in recent years, if I were to consider that the present proposal was unacceptable, I would then proceed to ask myself the question can be made acceptable, within the scope of the present application, by requiring minor changes to be undertaken. It is not appropriate, within the statutory framework within which this case is to be heard and determined to question whether there would be a better location in preference to an acceptable location - to do so would be to commit an appealable error.

Benefits from the new Plan of Management? 18 I now turn to consider the question of the proposed plan of management to be incorporated in the conditions of development consent. 19 In my earlier decision noted at (1), I said the following concerning the proposed new plan of management: 57 The Gaff currently has a plan of management. Those giving evidence (both for the council and for the applicant) agreed that the current plan is significantly inadequate.

58 The applicant has commissioned Mr Askew, a security management expert, to prepare a new plan of management to be applied to the operations of The Gaff. Mr Baldacchino gave evidence that he has already commenced the implementation of a number of aspects of this plan of management and intended to continue doing so into the future. 59 The new plan of management, it was agreed by the council's witnesses, Sgt Mort, the NSW Police Service's Licensing Supervisor for the area, and Mr Vincent, the council's Senior Building Surveyor, Health and Building, was a significant improvement on the present plan of management. It was Sgt Mort's evidence that he expected the implementation of this plan of management would lead to some improvement in the difficulties that have been experienced by the police and the local community with noise and other aspects of antisocial behaviour. However, it was his evidence that he expected that these benefits would be confined to an area of a 50 m radius from the premises. The extent of the benefit, that is that it would be obtained within a 50 m radius of the premises, was consistent with Mr Askew's security evidence. It was also Mr Askew's evidence that the extent of the sphere of influence that The Gaff's security guards would be able to exercise would be confined to a 50 m radius from the premises.

60 As a consequence, given this evidence and the further evidence of Sgt Mort that he considered patrolling by security officers employed by The Gaff, if going beyond a 50 m radius from The Gaff, potentially exposed of those security officers to unacceptable dangers (at least if patrolling unaccompanied), leads me to accept, as an agreed proposition, that the implementation of the new plan of management would provide benefits to the local community but that the extent of such benefits would be confined to that 50 m sphere of influence around The Gaff and Oxford Square. 20 Mr Baldacchino, one of the proprietors of The Gaff, gave evidence in the earlier phase that, whether the application was approved or not, he considered it appropriate to implement the new plan of management so that the operational improvements that have been agreed that would arise if the premises were to do so would come to pass. It was his evidence, on that occasion, that he had already commenced to do so.

21 During the course of the resumed hearing Mr Fullilove, a former sergeant of police and licensing supervisor with the King's Cross Local Area Command, who had been recruited by the council in July 2009 as its licensing compliance supervisor, gave evidence concerning the premises, although he had not played any part in the joint conference of the relevant experts during the first phase of the proceedings. Although an employee of the council, his evidence was requested by Mr McEwen SC for the proprietors of The Gaff.

22 Although I accept evidence given by Mr Fullilove that there may still be deficiencies in the management processes by the proprietors of The Gaff and that much, if not all, of the improvements that are contained in the new plan of management are ones which the proprietors ought to implement independently whether or not they were mandated to do so by virtue of the conditions of a development consent, there are two significant factors that operate in favour of granting a development consent that incorporates the terms of the plan of management.

23 The first of those derives from two aspects of the evidence given by Mr A Baldacchino. That evidence, relevantly, related to his view that he, in some fashion, was entitled to continue to use portions of Oxford Square, after 10 PM, as part of the management activities of The Gaff despite the fact that there is no consent for or licence entitlement to use this space at these times. This should also be viewed in light of the fact that that, after The Gaff's licence to use portion of Oxford Square for dining purposes up to 10 PM expired, Mr Baldacchino continued to use this area for those purposes despite the fact that there was no carrying-over provision in the licence from the council. I do not consider that the continuing payment of rent provides any assistance of significance in offsetting this unauthorised use.

24 A further aspect is that, although Mr Baldacchino gave evidence that he intended to implement the terms of the new plan of management whether or not The Gaff was given consent for any aspect of the present application, some doubt arises as to whether this is, in fact, taking place. In making this remark, I accept and acknowledge the evidence given by Mr Fullilove that improvements have taken place in the security management processes - particularly with respect to the rear lane. Indeed, residents of one of the premises who had objected to this development application acknowledge this.

25 The second matter which weighs in favour of mandating the new plan of management, is, as Mr McEwen pointed out, the fact that a mandated plan of management as a condition of the development consent will run with the land and will bind any successors in title to the present proprietors. Given the antisocial behaviour of the patrons of The Gaff, not merely beyond the 50 m radius (where it is clear, as discussed in my earlier decision, the management and security staff of The Gaff can have no effective influence), there has also been a significant history of antisocial behaviour within that more confined area defined by that 50 m radius from the premises.

26 As discussed earlier, it is agreed (and I accept) that there are benefits to be obtained from the implementation of the plan of management. Indeed, there is as also discussed above, evidence that, although not mandated, some of the plan of management's benefits are already accruing to the local community.

27 Although I also accept Mr Fullilove's evidence (as it is consistent with my own experience in licensed premises cases and with that described by my fellow Commissioners in other licensed premises cases) that such antisocial behaviour can never be entirely eliminated, all practical steps should be taken to minimise such behaviours and its impact on other land uses nearby - particularly on residences in the vicinity. 28 Such an approach to existing licensed premises (as distinct from consideration of applications for new licensed premises) involves a co-operative approach, desirably, between the proprietors of premises, the police and the relevant local council. However, it is also desirable, if such cooperative approach is not present or fails for some reason, that resort can be had to enforcement by the civil authorities of those necessary measures to ensure that minimisation of the impact can be achieved. Although the civil authorities have a range of statutory tools for this purpose, one important element of these tools (for the local council) is provided by the enforceability of a plan of management made enforceable by its incorporation as a condition of development consent.

29 Indeed, it was Mr Fullilove is evidence that, to his knowledge, in addition to police enforcement activities, at least one enforcement activity for breach of development consent had taken place in the past by the issue of an infringement notice. This reinforces the availability of such process and the appropriateness of having such impact minimisation provisions available in conditions of consent capable of being enforced. 30 Finally, although I note that the passage of the Liquor Amendment (Temporary Licence Freeze) Act 2009 may impact on the timing of the implementation of this decision, it does not impact on my consideration of its merits.

Conclusion 31 If I am wrong about the heritage impact and there would be some heritage impact that, absent any countervailing benefits, would warrant refusal of the present proposal, I am, nonetheless, satisfied that the benefits to be obtained by incorporating the proposed plan of management in a development consent so as to render it enforceable provides sufficient countervailing public benefit so, when balancing any negative heritage impacts with the public amenity benefits would also render the proposal acceptable on balance. 32 However, as earlier discussed, I do not consider it is necessary to reach this secondary conclusion as I am of the view that there is no heritage basis warranting refusal and, as a consequence, the plan of management benefits, although undoubtedly desirable, should be regarded as benefits additional to an otherwise acceptable proposal.

33 Although I have concluded that there will be some impact on the understanding of the heritage significance of the building by a casual observer, I am satisfied that that is not of great significance and is reversible. I am also satisfied that although, in itself, that impact would not warrant refusal of the development application, it is also offset (whether entirely or not being irrelevant given that I would not refuse this element of the application on heritage grounds) by the benefits to be obtained on a long-term basis by incorporating the terms of the proposed plan of management as enforceable elements of a development consent. 34 It therefore follows that I am satisfied that the expansion of the premises into the former medical centre space to the west coupled with the construction of the proposed smoking terrace should be permitted subject to the parties settling the revised conditions of consent to reflect on this decision.

Orders 35 The orders of the Court, therefore, are: 1. The appeal is upheld; 2. Development Application No: D/2008/00057 together for the expansion of the operational premises of the nightclub known as The Gaff into the adjacent premises to the west (accompanied by alterations and additions to those premises and to the present premises) at Oxford Square, Surry Hills in accordance with plans by Borg Architects (but with no increase in permitted patron numbers at The Gaff) is determined by the granting of development consent subject to the conditions in Annexure A; and 3. The exhibits, other than Exhibits A, J, 7 and 36, are returned

Directions 36 I therefore give the following directions: 1. The respondent is to file, in hard copy and electronically by e-mail to the Court (directed for my attention), settled conditions of consent to reflect this decision by the close of business on Tuesday, 15 December 2009; 2. The matter is listed for mention before me at 4.00 PM on Wednesday 16 December 2009; and 3. If direction (1) is complied with, I will make orders in Chambers and vacate the mention.

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