Hosking Munro Pty Ltd v Sydney CC

Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 LEGISLATION CITED: South Sydney Development Control Plan 1997 Draft Regulation of Sex Service Development Control Plan 2003

Stockland Holdings Pty Ltd v Manly Council [2004] NSWLEC 472; CASES CITED: Elvedon Holdings Pty Limited v South Sydney City Council, (20163 of 1998 and 20062 of 1999 - 23 June 2003)

DATES OF HEARING: 16/09/2005 EX TEMPORE JUDGMENT DATE : 09/16/2005

APPLICANT Mr J. Kildea, barrister SOLICITOR LAS Lawyers & Consultants

RESPONDENT Mr P. Clay, barrister SOLICITOR Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10224 of 2005 Hosking Munro Pty Limited v Sydney City Council This decision was given as an extempore decision. It has been revised and edited prior to publication.

JUDGMENT 1 In 1989 the premises at No. 70-70A Darlinghurst Road, Kings Cross was granted development consent as a theatre restaurant and has continuously operated as a strip club since that time. The club was granted a licence in 2004. The second floor of the building has development consent for a brothel.

2 The premises comprise a three storey building located on the southern side of Darlinghurst Road near its intersection with Bayswater Road. The strip club known as Playbirds/Centrefolds International is situated on the first floor and the brothel on the second floor.

3 On 1 February 2005, Development Application No. D2004/1110 was determined by the City of Sydney by issuing a deferred commencement consent ("the consent") for the refurbishment of the strip club. More particularly, the consent is for the:

internal fitout and refurbishment of sex service premises (strip club) on the first floor of the building including the construction of a bar and stages to operate as a licensed premises between the hours of 7am and 6am seven days a week.

4 The applicant has now appealed against conditions 2 and 45 of the consent. Condition 2 provides that:

the hours of operation are regulated as follows with closing hours being such that no customers remain on the premises:

(a) the hours of operation of the premises shall be restricted to 8am to 12am (midnight) seven days a week; (b) notwithstanding (a) above, the premises may operate between 7am and 6am for a trial period of one year from the date of commencement of these extended hours. The operator shall inform council in writing of the date upon which these extended hours commenced of any interruption to the continual operation of these hours. 5 Condition 45 of the consent provides that,

no persons (such as those commonly known as spruikers) or recordings or other devices which have the effect of spruiking are to be located on council owned property. Furthermore the sound level of any spruiking or amplified noise generated within privately owned land must not be audible on council's footpath adjoining the subject premises. No security guards are to be stationed on council owned land.

6 There is no appeal against condition 46 of the consent that requires the premises not operate as a brothel at any time, a condition that will effectively close down the brothel on the third floor of the premises and prevent it from being used as such generally.

7 Relevant planning controls comprise South Sydney Local Environmental Plan 1998, ("the LEP") and South Sydney Development Control Plan 1997. The Draft Regulation Of Sex Services Development Control Plan 2003 ("the draft DCP") is also applicable and has otherwise been adopted as a council policy.

8 Under the LEP the site is in the Mixed Uses Zone 10. The objectives of this zone include the provision of a mixture of compatible land uses, the promotion of mixed use planning and the minimisation of adverse impacts on residential amenity. The zone also seeks to ensure that nuisance generated by non-residential development is controlled so as to preserve the quality of life for residents in the area.

9 The application was advertised and one submission was received objecting to the proposal on the grounds that it would detract from residential amenity in the area in relation to noise emissions, traffic generation, parking and violence.

10 Mr Andrew Woodhouse provided a submission from the Potts Point and Kings Cross Heritage Conservation Society which in the context of this appeal expresses a number of concerns in relation to spruikers, especially their anti-social and offensive behaviour. He submitted that the council policy that seeks to ban spruiking should be enforced.

11 Expert town planning evidence was provided on behalf of the respondent council by Mr G Cirillo and on behalf of the applicant by Mr M Ball.

12 In relation to the hours of operation condition, I have decided that this condition should be deleted from the consent essentially for the reasons given by Mr Ball. Whilst I recognise the significant recent civic upgrade of Darlinghurst Road, this does not mean that the operating hours as proposed would be unsatisfactory, nor do I accept that a precautionary approach is required on the basis of this being an intensified and reconfigured operation. Even if the use were to be intensified as a result of this consent, I do not see how there would be any external consequences of this to warrant a trial period. As Mr Ball said, noise emissions are not contested, customer numbers are not to be increased and the entry and exit location will remain unchanged. Moreover, the premises has operated as a strip club 24 hours per day without complaint.

13 Condition 45 that seeks to ban spruiking altogether is less easily resolved. I am satisfied that the draft DCP that is an adopted policy should be given weight as a development control plan, consistent with the Court's decision in Stockland Holdings Pty Ltd v Manly Council [2004] NSWLEC 472, the policy being supported by appropriate analysis and public consultation. In par 3.6 of the policy, spruiking is not permitted on the council footpath outside sex services premises, which would include the subject premises. The purpose of this requirement is explained as being to protect the public domain.

14 The question that arises is what weight should be given to this intended prohibition? As a policy document it can attract no greater weight than a development control plan, which is a matter that must be properly taken into consideration. It cannot however be seen as an absolute prohibition of the kind that might be found in a local environmental plan.

15 The task that I am required to undertake is to decide whether I should override a particular provision of a policy that I presume to be well founded. The manner in which this process can be undertaken is to consider whether in this case to allow spruiking on the public footpath would have the adverse impacts of concern in the policy that aims to protect the public domain. The absence of any particulars in the policy as to how the public domain might be adversely affected by spruiking does not assist.

16 Mr Cirillo explained what he believed to be the inappropriate consequences of spruiking including intimidating and the obstructing of the passage of pedestrians. This is in addition to the recent civic upgrade of the area that he said would be adversely affected, such upgrade involving improvements to the character of the area and converting it from a predominantly "red light district."

17 In response, Mr Ball pointed out that this is an entertainment precinct to be distinguished from other nearby areas including residential areas. Spruiking has been for many decades and continues to be an integral part of uses such as this strip club in Kings Cross.

18 I note that there are a number of other strip clubs in this locality that utilise spruikers. There was no particular evidence put to me that there is a serious problem with spruikers at the subject premises, as reflected by the fact that the Licensing Court of New South Wales has indicated there are no recorded complaints, nor are there any recorded complaints with the council. In the absence of advice to the contrary, I also presume that there are no recorded complaints with the police.

19 The use of spruikers in public places is not restricted to sex services premises and I am not aware of any proposal to prohibit such premises. In Elvedon Holdings Pty Limited v South Sydney City Council, (20163 of 1998 and 20062 of 1999 - Date of Judgment was 23 June 2003, Murrell C decided that properly managed spruiking is appropriate for the Kings Cross area, it having a particularly unique character. Despite the council policy that seeks to prohibit spruiking, I have concluded that the observations of Murrell C remain correct. Taking into account that this is an existing strip club the character of the area and the proposed management plan, I am satisfied that spruiking should be permitted.

20 However, having considered the activity of spruiking whilst standing on the footpath outside the premises, I have reached the opinion that given the width of the footpath, only one spruiker should be permitted at any one time and that the 3 m radius of constraint should be reduced to half the width of the footpath. In this context I note that the Liquor Licence only allows one spruiker.

21 Consequently, condition 45 should be deleted and replaced with the condition in exhibit C which must be amended to refer to no more than one spruiker. Condition 45 is also to be extended to require that:

all spruikers are to be provided with a copy of the plan of management and are to be fully aware of its contents before undertaking such duties.

22 I have also decided that to ensure that the plan of management is effective and capable of being enforced, bearing in mind the need to reasonably protect the public domain in the context of the character of this area, that spruiking should be subject to a 12 month trial period.

23 The orders of the Court will therefore be that the appeal is upheld and condition 2 of the consent is deleted, and condition 45 is deleted and replaced as discussed.

      T A Bly
      Commissioner of the Court
      ljr

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.