Moses & Anor v Council of the City of Sydney

Copatress Pty Limited v South City Council [2002] NSWLEC 254; ABC Planning Pty Limited v South Sydney City Council [2002] NSWLEC 255; CASES CITED: Segal v Waverley Council [2004] NSW LEC 363; .

DATES OF HEARING: 8 and 9 August 2005 EX TEMPORE JUDGMENT DATE : 08/09/2005

APPLICANTS Mr S Griffiths, solicitor Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr S Kondilios, solicitor Maddocks Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

05/10438 James Moses & anor v Council of the City of Sydney This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

JUDGMENT 1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by the Council of the City of Sydney (the council) (and subsequent actual refusal on 17 May 2005 by the council) of Development Application 04/1711. 2 The application seeks to undertake renovations and refurbishment of premises at 1 Kellett Way, Kings Cross (the site), in order to permit their use as a night club accommodating up to 250 persons with the venue to operate as a restaurant only on Mondays and Tuesdays and as a night club on Wednesday, Thursday, Friday, Saturday and Sunday nights, on all nights trading until 3am with the night club trading on the nominated five nights until that hour of the morning.

3 The site is located on the intersection of Kellett Way and Roslyn Street at Kings Cross. It is located in an area that was formerly under the planning control of the South Sydney City Council, but has now been subsumed within the boundaries of the council's area. 4 As a consequence of the amalgamation of South Sydney City Council with the council, the provisions of the South Sydney Local Environment Plan 1998 (the LEP) continue to apply to the site. The site is in Zone 10, the mixed uses zone of the LEP.

5 I have been taken to a number of decisions of Commissioners of the Court with respect to the issues in these proceedings. I propose to turn to two of them in more detail after outlining the nature of the matters I need to deal with in this decision. 6 The first matter put by Mr Kondilios, solicitor for the council, is the social impact of the proposal, which, it is contended by the council, on its own, warrants refusal. The second matter so put is that on general planning grounds, quite separate from the detail of design of the structure, that the proposal is so alien to the transitional element of the zone within which it is located, that it should be rejected on that ground alone. 7 In regard to the latter element, as a result of two views that I took of the site, (the second being undertaken on the second morning of the hearing with the benefit of a height pole erected on the north-eastern corner of the site to show the uppermost point of the proposed glass enclosure, which is proposed to totally enclose the existing courtyard), it became obvious to me that, on a preliminary view, the proposal before me was unlikely to be approved in its present design. I put this tentative and rebuttable opinion to the representatives of the parties to assist the progress of the matter. 8 As a consequence, Mr Griffiths, solicitor for the applicants, foreshadowed amendments (subject to a number of undertakings as to costs and the like) and an application to seek an adjournment should the application not fail at the other hurdles - so as to enable the plans to be modified in order to lower the roofing enclosure for the courtyard area. 9 I indicated that I would deal today with the other matters, so that, if the applicants did not fail on them, then they would be afforded the opportunity to reconsider and substantially modify the design of the proposal.

10 The first of the decisions of Commissioners of the Court to which I have been taken and which is of relevance, in my view, is the decision of Bly C in Copatress Pty Limited v South City Council [2002] NSWLEC 254.

11 That decision dealt with premises in an area of the then City of South Sydney of the same zoning as this, but at a somewhat different geographic location. 12 In this regard at para 34 of the Commissioner's decision, he said: In essence, the provisions of the LEP and the DCP anticipate in the mixed uses zone a mixture of compatible, vibrant, non-residential uses with residential uses and with an emphasis on the protection of the amenity of residential uses. These provisions reflect the fact that this is not a residential zone in the conventional sense, where non-residential uses are discouraged. 13 I am satisfied that that is an appropriate and accurate summary of the nature of the zone with which I am dealing.

14 On a more specific note, however, I have been taken to a decision of Brown C in ABC Planning Pty Limited v South Sydney City Council [2002] NSWLEC 255, dealing with a site directly to the north of the present site on the other side of Roslyn Street. Brown C dealt with a proposal for a convenience store to be created on a number of (to be amalgamated) shop fronts, and for that store to trade on a twenty-four hour basis. Many of the issues that were before Brown C are also before me in this appeal.

15 In Segal v Waverley Council [2004] NSW LEC 363, Lloyd J dealt with the issue of comity of decision making and consistency of decision making for Commissioners of this Court. 16 He said at para 12 of that decision, The applicability of the principle of consistency of decision making was thus a significant issue raised by the parties in the proceedings before Commissioner Watts. Although the principle of stare decisis did not apply to the Commissioner in that the earlier decision was not binding upon him, he was still bound to consider the applicability of the principle that there should be consistency between decision makers.

17 At para 16 of this decision, and continuing into para 17, [omitting the citation of authorities], his Honour said, Moreover it is well recognised that judges of first instance are usually required to follow the decision of another judge at first instance in the same jurisdiction as a matter of judicial comity, unless the judgment was wrong or there was some other distinguishing feature. If a judge decides not to follow a decision of another judge, then he or she must give reasons therefore.

This requirement also applies to Commissioners of this Court.

18 Although the decision in Segal is the subject of an appeal in the Court of Appeal, that appeal has not been determined and therefore, as at the present time, Lloyd J's decision reflects the settled law and binds me in this appeal.

19 The relevant matters that derive from Brown C's decision in ABC Planning are set out, in my view, at paras 37 to 41 of the commissioner's decision. 20 First, I quote from para 38, where he said: In my view the council's planning approach of providing a buffer or mixed use transition or precinct between the high activity levels of Darlinghurst Road and the residential areas to the south is sound and should be supported.

21 I accept and adopt that view. 22 However, there are, it seems to me, two significant differences of fact between the matters dealt with by Brown C and the present application. 23 They arise from statements in para 38 and the conclusion set out in para 40, dealing with the evidence given or discussed earlier in the decision relating to supervisory or surveillance benefits which might be available to the precinct by the extra level of activity that would be generated merely by the trading of a twenty-four hour convenience store. 24 Those two significant differences are these: o First, the proposal that was dealt with in ABC Planning was for a twenty-four hour operation, whereas that is not the case for the present premises. o Second, the additional neighbourhood surveillance values that were put on behalf of the applicant in ABC Planning were essentially passive ones - that is that the additional level of activity which would be generated by the store would provide those benefits to the community. 25 I have in evidence in these proceedings a proposed plan of management prepared on behalf of the applicants, which notes, inter alia, at para 13 that there are to be four closed circuit television cameras installed. 26 They are to be located at four nominated locations: o in Kellett Way covering the entry and the street; o in Ward Avenue, covering the service entry and the park; o in Roslyn Street covering the street and the park; and o in Kellett Street covering the fire exit and the Kellett Street entrance (that being a rear entry from the premises to Kellett Street which would only act as a fire escape).

27 Thus it would be open to me, I am of the view, to conclude that those differences from the factual matters being considered by Brown C in ABC Planning Pty Limited constituted sufficient factual differences for me to distinguish the present application from the conclusion which he reached at para 41 - that is that twenty-four hour trading would be inconsistent with the objectives (b) and (h) of Zone 10, as set out in the LEP.

28 It is, therefore, in the context of considering those two differences that I turn to the detailed information provided to me in these proceedings through the evidence of Acting Sergeant Fullilove of the Kings Cross Local Area Command of the New South Wales Police Service. 29 The Acting Sergeant gave evidence and provided extensive documentary information extracted from the New South Wales Police computer operational system of incidents which had come to the attention of the police in that portion of Roslyn Street, between Darlinghurst Road and Ward Avenue and the nodes or areas at either end of that section of Roslyn Street. 30 Details of a large number of incidents were provided. 31 However, closer examination of them shows that only eight of them relate to late night trading entertainment venues which are operating in the element of Roslyn Street between, on one side, Barncleuth Lane and, on the other, Kellett Way, west to Darlinghurst Road. 32 There were, in addition, a number of other incidents which appear to have taken place in the public space on the corner of Ward Avenue and Roslyn Street, but they appear to be matters of general criminal antisocial conduct or offensive behaviour that do not appear to be linked to any of the entertainment facilities.

33 However, it was the Acting Sergeant's evidence that the addition of any additional or further entertainment facility in that area would, in his professional judgment, compound the policing problems and difficulties already experienced in the precinct.

34 It was the evidence of Ms Foster, a senior town planner employed by the council, that I should regard the transitional nature of Roslyn Street in this area as being divided effectively by the areas either to the west of Barncleuth Lane or to the west of Barncleuth Lane and Kellett Way, and those areas east of them, the eastern element including the site. It would seem to me that that would have considerable merit and is an appropriate approach to take. 35 However, it is well settled in this Court that it is not possible to remove all antisocial behavioural elements associated with late night trading venues, either of hotels and licensed premises generally, or from such premises with places of public entertainment approvals, an approval which is proposed to be sought for the present premises.

36 The conclusion which I have generally reached is that it is likely that there will be a degree of antisocial behaviour that will be attracted to, and caused by, these premises, no matter how well intentioned or well carried out the security management plan may be. 37 I am also satisfied that there is a significant background level of such antisocial behaviour in the vicinity unrelated to any entertainment venue (although these are likely, on the Acting Sergeant's evidence, to be mostly alcohol fuelled).

38 Making a qualitative assessment of all of those matters leads me to the conclusion that I ought not refuse the application on that ground alone for the reason that the active security and CCTV surveillance afforded if the application were to be approved will provide a deal of positive benefit 39 However, I should expressly note that the degree of additional antisocial activity likely to arise from the premises would make a considerable contribution to the possibility of refusal if there were to be other grounds of a planning philosophy nature (as put to me today by Mr Kondilios) or of a detailed nature arising out of the proposed amended plans. 40 I indicate. as it may assist Mr Griffiths in his advice to his clients on this matter, that that is a matter of very fine balance and what one might describe as a closely run thing on that point alone.

41 I turn to the question of whether or not I should reject the appeal, solely on a general planning basis, on what Mr Kondilios puts as the entirely alien and unacceptable nature of the enclosure of the courtyard appended to the Italianate heritage item which is the subject of the application. 42 I propose to deal with that matter today, comparatively briefly, because I am of the view that if I were to conclude, on amended plans, that the enclosure of the courtyard were unacceptable, that is a matter which would not necessarily warrant refusal on that basis alone but might well warrant an indication to the applicant that further amendments to the plans should be proposed. 43 I do not accept that requiring further amendment, should I be minded to reach that conclusion, would be to result in a development so alien that it would be unacceptable. 44 Indeed as I understand the papers that are before me, it would be simply reverting the application to that which was originally lodged with the council for its consideration and, therefore, could not in any sense be described as a substantial departure from the original application, as it would be identical with it.

45 Therefore, I have reached the conclusions today that: o there are significant adverse social impacts of the proposal; o on a very fine and marginal balance, they do not by themselves warrant refusal because of the countervailing public benefits accruing from the active security presence in and CCTV surveillance of elements of the nearby public domain; but o these impacts go extraordinarily close to doing so. 46 Having reached that conclusion, I should provide the applicants with the opportunity to amend the plans as they have sought, subject to the undertakings which Mr Griffiths foreshadowed to me earlier, that he would give on behalf of his client on the record, and which I will shortly invite him to do. These will be that: o first, the additional costs of Mr Cooper, the expert acoustic expert, will be met entirely by the applicants should they wish to pursue the avenue of amended plans in light of my decision on the social matters; o second, that a fee equivalent to a development application fee would be paid to the council to assess the revised plans; and o third, that additional professional costs would also be met by the applicants.

47 By way of clarification, I am not suggesting that the foreshadowed amendments to the courtyard structure will cure or offset the difficulties that arise with respect to the public security or social issues. I am, however, suggesting that the weight on the scales of that adverse finding is not sufficient, as it presently stands, to warrant refusal on its own, but if there are other weights that get added to that, on that side of the scale, as the scale is already very close to being tipped to refusal that might result.

48 I therefore give the following directions: 1. the applicants are to file and serve revised plans by the close of business on 17 August.; 2. the respondent is to file and serve any evidence with respect to the revised plans by the close of business on 31 August; 3. the applicants are to file and serve any evidence in reply by the close of business on 7 September; 4. the applicants are to provide Mr Cooper with the revised plans by the close of business on 17 August and request Mr Cooper to report upon them by 31 August, with a copy of the report to each of the parties, and to the Court; 5. the applicant is given leave to provide additional material from Acoustic Logic to Mr Cooper, in support of the revised plans. If the applicant does so, such material is to be filed and served at the same time as is provided to Mr Cooper. 6. liberty to relist before me at 9 am on two days notice; and 7. liberty to approach the Registrar forthwith for a one day hearing date on or after 8 September.

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