Fazio and City of Fremantle [2006] WASAT 169 | Case summary

Fazio and City of Fremantle [2006] WASAT 169 | Case summary | Zoe

[15]

7 The subject land is rectangular in shape with a frontage of 15.21 metres to South Terrace and an area of 758 square metres. The subject land extends between South Terrace at the front and Paddy Troy Lane, a public street, at the rear. Included within the subject land adjacent to the northwest boundary is a 3.0 metre wide rightofway, being a private pedestrian arcade, extending from South Terrace to Paddy Troy Lane.

8 The building on the subject land extends from the South Terrace boundary to the Paddy Troy Lane boundary. It abuts the arcade at one side and on the southeast side has a setback of about 1.5 metres extending from South Terrace for about 17.0 metres. The building has a basement, a ground floor and a first floor. Entrance to the basement is from a foyer halfway along the length of the building, with access gained from the 1.5 metre wide walkway at the side.

9 The basement is in the tenancy of Dorigo Pty Ltd and is used as a nightclub called the Clink, which extends under the arcade and occupies part of the basement of the building to the northwest.

10 Madonna's occupies about 190 square metres of the ground floor at the front of the building and virtually all of the first floor. That part of the ground floor not occupied by Madonna's is occupied by the entrance foyer to the basement, and at the rear, a separate tenancy previously used as a restaurant and now vacant. There are no internal connections between the three ground floor tenancies.

11 On the ground floor, Madonna's includes a dining area, a bar behind which are a pizza oven and food preparation area, lavatories and a central staircase to the first floor. The restaurant also has approvals for footpath trading and has tables and chairs set up on the footpath. The first floor area of Madonna's includes seating area, bar, kitchen, lavatories and an office. It also includes an open verandah at the front behind the parapet of the façade of the building.

12 The façade of the building is on the Heritage Council of Western Australia's register of heritage places. This includes the parapet above the awning and some of the building detail. The shopfront, however, has been replaced with half being bifold doors which open to allow movement between the footpath and couches arranged around coffee tables at the front of the restaurant. Bifold doors also extend along the wall between the arcade and Madonna's.

[17]

15 The application was for approval of a nightclub use for Madonna's. Limited internal fitout would be the only physical change to the existing premises. A nightclub requires a cabaret licence issued under the Liquor Licensing Act 1988 (WA) (LL Act). Blueland plans to apply under the LL Act for the relocation of the cabaret licence it holds for the U2@theBog (the Bog) nightclub at 189 191 High Street, which has planning approval but is not currently operating. Madonna's existing restaurant liquor licence would then be surrendered. It was proposed that the application to relocate the cabaret licence include an application for an extended trading permit so that prior to 6 pm, the ground floor of Madonna's could be used as a restaurant.

16 The applicants proposed that on the ground floor, the cabaret licence apply to 100 square metres of public floor area, which is the existing dining area. On the first floor, the cabaret licence would apply to the 37 square metre balcony area behind the façade, the existing 163 square metre restaurant area plus a further 19 square metres which would be converted from a former food preparation area at the centre of the floor away from the balcony. No external speakers are proposed for the balcony area. The total public floor area would be 319 square metres, and so, at one person per square metre allowed under the Health Act 1911 (WA), the nightclub would cater for 319 persons over the two floors.

17 The extended trading permit restaurant use of the ground floor would be open for breakfast from about 7.30 am to 8 am on weekends and for lunch from about 11 am on weekdays, and cease trading around approximately 10.30 pm to 11 pm, depending upon demand. During late evening trading, the nightclub area of the ground floor would retain about 30% of the dining tables and chairs for restaurant use. The change of other tables to predominantly low/coffee table style would occur through gas lifted dining tables being lowered in height. The applicants propose that the light meals and snacks from the kitchen of the ground floor be available for purchase until 2 am.

18 The first floor would operate as a nightclub subject to a cabaret licence, only open before 8 pm for prebooked functions and closing at 6 am. It would always be furnished with low/coffeestyle tables and lounges.

[19]

19 Mr Ridolfo Fazio, a director of Blueland which would manage the nightclub, described the proposed operation as an extension of the existing Madonna's restaurant and café business into the later hours through a subtle style change from traditional restaurant dining to "chic tapas lounge".

20 He believed the tapas lounge, or tapas bar as it is also referred to, would attract and cater for what he described as the upmarket, white collar, older patron, which he clarified as a patron over 25 years of age, dressed in smart casual clothes and more mature in behaviour than younger nightclub patrons. On the ground floor the music would not be loud nightclub type music, and, from time to time, live performers such as a flamenco guitarist or a small ensemble would play. The volume of music would allow diners and tapas bar patrons to relax and converse in an area of highquality furnishings, food and beverages. A full restaurant menu would be available until about 10.30 pm to 11 pm, but the tapas bar would be the predominant use from about 6 pm. Patrons would be able to purchase a glass of wine and a small snack, rather than a substantial meal as presently required by the restaurant liquor licence. Food for purchase would include Spanish tapas, antipasto dishes, woodfired pizzas and tasting plates until 2 am.

21 All but one door would be closed at around 10.30 pm to 11 pm with access to and egress from the premises then limited to the door at which people would queue to gain entrance to the nightclub. Mr Fazio said that after 6 pm, people entering who were not dining would be charged an entrance fee.

22 Mr Fazio emphasised that the glass windows and bifold doors on the South Terrace frontage would not be changed. He said an important part of the proposed late night trading was to allow people from outside to see in and for people inside to see out. The frontage would not become what he described as a stereotypical nightclub with a blank, blackedout frontage to the street.

[54]

38 TPS 3, unlike most planning schemes, does not include provisions for additional use permits to allow for the building to be used for a purpose in addition to another use already permitted in the zone. Under TPS 3, a nightclub cannot be approved for use prior to 6 pm, so in planning terms, the approved uses of the same ground floor area would need to be as a restaurant until 6 pm and as a nightclub after 6 pm. Such a highly unusual use situation was not subject to submissions, but in any event, it would appear that, were a s 40 certificate under the LL Act applied for and issued reflecting these uses, this would clearly create difficulties with the proposed relocation of the Bog cabaret licence to the site because, under s 36 of the LL Act, the same floor area cannot be subject to two different licences. In this instance, for the applicants to achieve their land use objectives, the planning approval must be for one particular use. It is common ground that planning approval would have to be for a nightclub, with a cabaret licence and extended trading permit, which can only be issued under the LL Act.

39 It is necessary, then, to consider the change of use of the premises from restaurant to nightclub. The applicants have emphasised that for the application to be assessed on its merits, it is necessary to look beyond the bare definition of a nightclub under TPS 3 and consider the true scope of the use, that is, the proposed tapas bar with its particular character and clientele, and how this would have a different impact on amenity than would a conventional nightclub as currently existing elsewhere in Fremantle.

40 The applicants' submission was that conditions of approval be imposed, preferably by way of a management agreement, to ensure the operation of the venue in the way described by the applicants. The proposed operator, Blueland, and any future operators, as the planning approval runs with the land, would then be constrained to operate the premises in the way proposed.

41 From the evidence of Mr Fazio, it is apparent that the tapas bar operation described depends upon a particular menu being available for purchase, music of a particular volume and type, particular forms of live entertainment, a particular level of lighting brighter than normally found in a nightclub, a select wine list, a dress code and an entry charge all directed to attracting a particular clientele, described as older, upmarket and white collar.

42 The Tribunal considers that none of these items can be the subject of planning conditions.

43 Draft conditions were filed by the applicants. These included, after discussion at the hearing: the ground floor kitchen being open until 2 am to provide tapas food until 2 am and a full restaurant menu until 10 pm; until 10 pm there being ground floor seating for about 30% of the capacity of restaurant patrons, that is, for about 20 people; that restaurant seating being in the form of sofas and five associated tables; and, there be no serving of alcohol to patrons on the ground floor after 3.30 am. During the course of the hearing, there were also discussed potential conditions requiring any queuing of patrons to be in the arcade to prevent congestion on the footpath, and the front of the premises remaining clear glass. Mr Jayson Miragliotta, the respondent's Director of Urban Management, also recommended draft conditions requiring noise attenuation measures and a management plan consistent with the requirements of the Fremantle Accord for crowd and staff management and complaints procedure.

44 The suggested draft conditions appear capable of being imposed, although some might present such a burden as to be difficult to sustain over time, such as those associated with food types and hours. None of these conditions, however, appear to the Tribunal to be sufficient to ensure that a use as specific as the tapas bar proposed by the applicants remain in perpetuity. A tapas bar does not present itself to the Tribunal as a discrete use that can be maintained by the imposition of planning conditions. The evidence fails to convince that a tapas bar is more than a label for a nightclub with a particular ambience promoted to attract a certain clientele. The tapas bar concept is considered to essentially be a business decision to differentiate Madonna's nightclub from others. The concept is too subjective to be sustained as a discrete use.

45 The evidence of Mr Ridolfo Fazio and also that of Mr Eric Fazio, a shareholder in Dorigo Pty Ltd and former manager of the Clink, who appeared for the respondent, was that nightclubs make decisions on an operational theme to attract particular patrons. If that does not work or tastes of the customers change, or even if special theme nights are required to provide variety, this is done to ensure continuity of the business. It is considered reasonable to speculate that at some time in the future it might be found necessary, for legitimate commercial reasons arising from fluctuations in popularity, taste and usage, to make the lights dimmer and the music louder or to have a different emphasis in atmosphere. There is nothing to prevent this happening and so would this then make the use something different from the tapas bar which was considered acceptable for the ground floor in the first instance?

46 The Tribunal has found that this proposal can only be considered as a nightclub, perhaps eventually with an extended trading permit, and potentially only subject to conditions of the type indicated in draft form above.

[59]

59 On the location of the proposed nightclub, the first of the more significant issues indicated by the parties, it can be said that the city centre of Fremantle is a location where it is expected that nightclubs might be found. This is clear from the MRS and SPP 4.2 which provide for entertainment uses to be located in strategic regional centres such as Fremantle. TPS 3 includes the subject land in the Central Business zone where AA uses include entertainment, hotel, licensed premises - other, nightclub premises, residence private and restaurant. Any additional such uses must, of course, be considered on their merits.

60 Mr Miragliotta advised that in the respondent's draft City Planning Scheme 4 (CPS 4), a nightclub will be a use "not permitted" in the zone. Counsel for the applicants pointed out that the change to prohibit nightclub use in the zone was made after advertising of CPS 4 for public submissions had closed. Given the zoning and location, Counsel argued that it is not known whether this change will be acceptable to the Minister for Planning and Infrastructure. The Tribunal has considered this matter in light of the planning controls now in place because of the uncertain status of this change to draft CPS 4.

61 The applicants pointed out that TPS 3 contains no objectives, purpose or intent for the Central Business zone. Mr Patric De Villiers, a planning consultant who appeared for the applicants, said guidance could be found in the Fremantle Planning Strategy 2001 (Strategy). This identified Local Planning Area 1 which proposed an entertainment precinct that included South Terrace between Market Street and Essex Street as an "entertainment zone" where entertainment and restaurant uses were encouraged. Reference was also made to the Local Commercial Strategy where the innercity was identified as an area where retail, commercial, leisure and entertainment uses would normally be located, and DBU 6 which specifically suggested nightclubs be located in South Terrace, High Street and Market Street.

62 While the planning instruments clearly identify that the city centre, including the cappuccino strip of South Terrace, is a locality where nightclub uses might be considered, the use is only allowed at the discretion of the respondent, and of the Tribunal on review. The Strategy also sets out that there must be a balance of the needs of residents, visitors and workers, and identifies the need to make some provision for control of the numbers and location of commercial activities. Mr Miragliotta highlighted cl 16 of TPS 3 which states:

[66]

67 The difference between the parties on this issue is addressed below under impact on amenity.

68 Part 2 of DBU 6 is specifically concerned with nightclubs, in particular the number of night clubs in Fremantle and the location of them. There was considerable exchange between the parties on DBU 6 seeking to impose a limit on the total area of nightclub floor space in Fremantle. At cl 2.2 of DBU 6 is an "inventory" of nightclubs in Fremantle listing five premises with a total floor area of 2525 square metres. It states that the "floor space for nightclub uses shall not exceed" this. The respondent said that currently the existing floor space exceeds this amount by 478 square metres in its estimation, but argued that the proposed development would increase the discrepancy further, and a core feature of the policy is to ensure the number of nightclubs does not contribute to a monoculture of late night venues being established at the expense of the amenity of the locality for residents and visitors.

69 The applicants said that they will be relocating the cabaret licence of the Bog nightclub (Kit Kat nightclub on the inventory) to Madonna's. In their submission, the Bog was now 329 square metres, and Madonna's will be 319 square metres and so there would be no increase in total floor area. It was further argued that, notwithstanding that transfer, DBU 6 should be given little, if any, weight. This was because DBU 6 focused on public need and this was not a relevant planning consideration. Further, since 1997, two of the premises on the inventory had closed, and the respondent had approved increases in floor area of the Bog, the Metropolis and the Clink in South Terrace, the Harbourside in Mews Road at Fishing Boat Harbour and a ground floor bar in Collie Street (but which had since been refused a licence).

70 The witnesses for each of the parties provided different figures on the current floor space, brought about in part by the respondent saying the licensed nightclub floor space at the Bog was only 214 square metres because no approval had been given for an increase. From the exchanges, the Tribunal has accepted that the current total approved floor space for nightclubs is 3132 square metres. This does not include other venues such as the established taverns and hotels and the more recently approved Benny's bar in South Terrace, all of which apparently have licence types or conditions that permit trading to 1 am. The applicant said the actions of the respondent over the last few years illustrated that floor space could be approved in conflict with DBU 6, if matters such as amenity were addressed.

71 From the submissions of the two parties and their witnesses, the Tribunal has formed the view that DBU 6, now nearly nine years old, has been overtaken, not surprisingly, by the dynamic nature of the evolution of the city centre, particularly in regard to the range of late night venues, including nightclubs. What once might have been a prescriptive guide for the absolute number of nightclub premises and floor space has been compromised such that the Tribunal considers that, while as a policy the increase in premises and floor space should be constrained in the interests of maintaining the required balance of uses, nightclub proposals could still be addressed on their particular planning merits.

72 The applicants' witnesses referred to the stated preference in cl 2.3 of DBU 6 for nightclubs to be located in South Terrace, High Street and Market Street in the Central Business zone and the desired separation distance of 100 metres from the nearest residence, which it was said had been satisfied. Mr Miragliotta referred to the reference in cl 2.2 to consideration of new or additional nightclub floor space to 200 square metres on a casebycase basis, and from cl 2.3, directly relevant to the amenity of the locality:

[69]

74 It was common ground that in light of the provisions of TPS 3 and the policies in place, consideration of the impact of a proposal on the amenity of a locality was a prime consideration. The applicants also agreed with the relevance of the amenity test of Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296. Simply put, that is to determine the existing amenity of the locality, assess the effect of the changes that will result from the development, and determine the effect of those changes on that amenity. As to what constituted the locality, the respondent referred to the reference in Tempora Pty Ltd v Shire of Kalamunda, at page 25, to Vickers v Director of Planning (1968) 16 LGRA 92, at page 25, which said the locality is one to which the subject land is related and of which it forms a part. The respondent argued there was the locality of South Terrace, particularly the cappuccino strip, and also the wider locality which included residences directly affected by the activity arising from the uses in South Terrace.

75 For South Terrace, Mr Broad gave evidence that the late evening amenity of the cappuccino strip was dominated by closed retail premises, and restaurants and cafes closing at about 10.30 pm to 11 pm. The change as a result of the proposal would be that the clear glass front of the nightclub would increase passive surveillance at the street past 11 pm until at least 2 am. An otherwise late night blank façade would become active. This change, he said, would make a positive contribution to the amenity of South Terrace. The restaurant use would continue during the day and so there would not be a blank façade at street level as found with other nightclubs.

76 The applicants committed to having any queue located in the arcade and so queuing would have no impact. On the impact of patrons leaving the nightclub, the applicants argued that there was no evidence to demonstrate that the type of patrons attracted to Madonna's would behave in the same manner when leaving as do the patrons of other late night venues described by the respondent's witnesses.

77 Witnesses Budge, Kinnane and Caporn, called by the respondent, who had worked in the locality late at night directly on behaviour problems, gave evidence of the poor behaviour early in the morning of people moving between late night venues along South Terrace or queuing in the street waiting to get into venues. They also gave evidence of poor behaviour from patrons who found there was no public transport and had to wait lengthy periods for the few taxis. In the professional opinion of these three witnesses, additional nightclub premises in South Terrace would add to a problem that was already unacceptable.

78 In respect of the wider locality, Mr Broad said that the nearest residence was more than 100 metres from Madonna's and so the proposal was consistent with this requirement of DBU 6. Dr Ian Alexander, an experienced town planner who also lives in Collie Street about 150 metres from South Terrace, gave evidence that he considered the 100 metre radius to be inadequate because of the movement of patrons through the streets between venues, particularly across to Harbourside.

79 The respondent argued that a measure of the existing amenity was clearly provided by the evidence of the witnesses called. Witnesses Budge, Kinnane and Caporn gave evidence of the poor behaviour early in the morning of people moving between late night venues through the streets between South Terrace and Harbourside. They also gave evidence of poor behaviour from patrons who found there was no public transport and very few taxis and so attempted to walk home past residences in the surrounding streets. Again, the professional opinion of these three witnesses was that an additional nightclub in South Terrace would add to a problem that they considered already unacceptable.

80 The respondent also called seven residents. Dr Alexander, Terrence O'Connor and Judith Payne lived sufficiently close to late night venues to relate their recent experiences of late night behaviour in the vicinity of their homes. Mark Cattell lived on a street which is a route south from the cappuccino strip and which has parking nearby. He referred to disruption as people returned to their cars in the very early hours. The other residents, Cr John Dowson, Cr Jon Strachan and Harriet Olney could only relate earlier experiences not part of the current situation.

81 The respondent said this evidence provided a clear picture of existing amenity in the near locality of the cappuccino strip late at night. It was submitted that approval of the proposed night club would add 319 more people, and the type of person who might patronise Madonna's could not be controlled by conditions of approval. The behaviour of a proportion of those patrons might therefore be no different from that of the patrons of other clubs. As a result, there would be an adverse impact on the amenity of this nearby locality and therefore the proposed nightclub should not be approved.

82 The applicants pointed out that it was proposed to relocate the existing cabaret licence from the Bog nightclub in High Street. This meant the planning approval for the Bog would lapse, removing a nightclub from a location that was closer to residences than Madonna's. This would also eliminate one potential source of pedestrian traffic between High Street and South Terrace late at night and would concentrate nightclub uses in South Terrace consistent with DBU 6 and the Strategy. The respondent replied by saying the Bog should be ignored because it had not operated for some years and there was no present pedestrian movement. This, of course, did not dispose of the potential for the Bog to recommence should the licence remain in place.

83 It was the applicants' submission that the problems associated with public transport and taxis were urban management problems not caused directly by the proposed use. It was in the hands of the respondent and the government to address transport issues in what was a strategic regional centre, and the applicants should not be penalised because, to date, they had failed to act. Reference was made to the respondent's closure at midnight of the Henderson Street multistorey car park.

84 Dr Alexander gave evidence that while Fremantle Central Business District (Fremantle CBD) acted as a strategic regional centre for adjacent parts of the metropolitan area, it was also a vibrant mix of commercial premises, entertainment facilities and residential accommodation within a heritage context. The respondent's facilitative planning policies had successfully reinforced this mix of commercial and residential activity. Dr Alexander acknowledged that residents of the inner Fremantle CBD were bound to be exposed to a certain amount of disturbance by virtue of the proximity to the entertainment area in South Terrace. He believed, however, that the City cannot cope with the existing patrons from late night nightclubs, hotels and large cabaret outlets. The proposed nightclub, he considered, would add to late night disturbance that was already more than the City could absorb, and this was likely to cause further damage to the residential amenity.

85 Mr De Villiers was of the opinion that there was no evidence that a saturation point had been reached in Fremantle. When examined, Dr Alexander did say that the residential population of central Fremantle was increasing.

[70]

86 As indicated above, the Tribunal is of the view that a tapas bar as proposed by the applicants is not a discrete use that can be maintained in perpetuity by the use of planning conditions. Those elements that would give the use its particular character are not matters that can be controlled by planning conditions. The conditions that can be imposed are generally much the same as might be imposed on any nightclub proposal. For this reason, the Tribunal is of the view it is not appropriate to conclude that into the future, this nightclub will maintain a unique character or that its patrons would continue to be distinguishable from those of other late night premises.

87 The Tribunal accepts that the nightclub would be properly run, but has concluded from the evidence that there is a problem in this locality with late night behaviour of patrons once they have left nightclubs. The point has been made that the proposal is to relocate the cabaret licence for 329 persons from the Bog and the number of patrons at Madonna's will be 319. In terms of measuring the current amenity, it is considered relevant that the Bog has not operated for a number of years, and there was nothing to suggest that it might resume operation at some time soon. For the present then, the proposed use could contribute up to an additional 319 nightclub patrons who would be seeking to find their way between venues or find a means of getting home in circumstances where such late night activities are already causing an adverse impact on the amenity of the locality.

88 Policy DBU 6 is considered still relevant. As pointed out, the policy does suggest South Terrace as a location for a nightclub. It also sets out that nightclubs should be located at basement and first floor level, with the ground floor available for commercial uses. A restaurant is considered an appropriate ground floor use. The proposed nightclub would require an extended trading permit issued by another body to achieve this end. While there is nothing to suggest an extended trading permit would not be granted were one to be applied for, the Tribunal is of the view that it would be more appropriate to have a planning approval in place to ensure an appropriate ongoing use of the ground floor prior to 6 pm, and this, for the reasons discussed above, cannot be granted with an approval for the nightclub use as proposed.

89 It is argued that the proposed glass front to the ground floor nightclub would be a positive contribution to the amenity of the street by providing additional passive surveillance into the early hours of the morning. From the description of the existing amenity of the street after 11 pm provided by the witnesses, this would be an improvement, but it would also be an exception. This improvement, of itself, is not considered sufficient to provide a reason for allowing a ground floor nightclub.

90 In respect of the respondent's resolution of 25 January 2006 in support of a nightclub on the first floor only, the Tribunal is not persuaded to make the same decision. The floor space would be similar to the 200 square metres referred to in DBU 6, but DBU 6 also requires that such proposals be considered on a casebycase basis. From the plans and the view conducted of the site, it is not apparent how the layout of the premises could accommodate a discrete use on each of the different floors. For example, nightclub patrons would have to use the restaurant dining area to gain access to and to exit from the nightclub, both when the restaurant is open and after it is closed at about 10.30 pm to 11 pm. It is considered unlikely that the two uses would share the same customers. Without more, the Tribunal is not convinced that the existing configuration of the building lends itself to the secure, practical operation of a nightclub use on the first floor and a restaurant use on the ground floor.

91 Under TPS 3, a nightclub is an AA use in the Central Business zone, that is, a use not allowed unless consent is granted. From the consideration together of all of the above issues, the Tribunal has formed the view that consent should not be granted and so the use as proposed has been refused.

Fazio and City of Fremantle [2006] WASAT 169 (26 June 2006)

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Fazio and City of Fremantle [2006] WASAT 169 (26 June 2006)

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