Pink Star Entertainment Pty Limited v City of Sydney

APPLICANT Mr P. McEwen, SC instructed by D. Mang of Las Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Clay, barrister instructed by Ms P. Adraskelas of Maddocks

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10857 of 2006 Pink Star Entertainment Pty Limited v City of Sydney

JUDGMENT Background. 1 This appeal was lodged against council's refusal of a development application seeking approval for a change of use of the premises located at 2 Roslyn Street Potts Point, from a licensed restaurant to a nightclub. The proposal involves: (a) Internal alterations, including fire safety upgrades; (b) Use of the premises as a Place of Public Entertainment; and (c) Hours of operation 12 p.m. to 6 a.m. the following day, 7 days a week.

2 The main issues identified for the appeal include: o Loss of amenity in terms of the quality of life and well being for the local community, acoustic impacts, nuisance related to extended hours and proximity to residential units, o Cumulative impacts; whether the approval of the proposed nightclub would lead to an unreasonable cumulative impact in that the concentration of many licensed premises in King's Cross , o Whether the proposal is contrary to the planning intent for the Kings Cross Urban Village Centre, o Public Interest.

3 The parties agreed to Mr G Atkins being the Court Appointed expert for the acoustic issues.

The site. 4 The subject site comprises Lots 2 and 3 in DP 179256. The subject premises are located within part of the ground floor level of a 4-storey masonry building on the north-western corner of Roslyn Street and Barcleuth Lane, Potts Point. It occupies approximately 273 sq m (70%) of the ground floor area of the building. The remainder of the building contains a separate property comprising Leisure Inn Suites (LIS) 'serviced apartment' accommodation above the proposal, which has recently been refurbished.

5 The subject premises has a primary frontage of 6m to Roslyn Street, with its entry alcove located 1.5 m from Barncleuth Lane. There are no window or door openings along the Barncleuth Lane frontage of the premises. The rear doors of the premises open onto a private waste service area with a gate to the lane. Entry and exit to the premises by patrons is from Roslyn Street, except in an emergency.

6 The subject premises currently operate as a 'nightclub' - The Ladylux, accommodating up to 180 patrons.

Planning Controls. 7 South Sydney Local Environmental Plan 1998 (SSLEP). Under which the site is within a Mixed Uses 10 zone and adjoins retail/entertainment uses to the west, south and north and residential to the east. It also within the Elizabeth Bay heritage conservation area.

8 The zone objectives relevantly include: (g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use development control plans, and (h) to ensure that the nuisance generated by non residential development, such as that related to operating hours, noise, loss of privacy, vehicle and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area. 9 South Sydney Development Control Plan 1997 (SSDCP); under which the site is within the King's Cross Urban Village/Entertainment Precinct 3, which is characterised by bars, nightclub, sex industry related premises, cafes and assorted offices, shops. Adjacent to the site is a Mixed Use Transitional Area. The planning intent for this precinct is: to recognise and encourage entertainment uses in the precinct (particularly at lower levels of buildings) whilst containing these uses to the assigned area to protect the amenity of the surrounding residential areas. Whilst activities in the King's Cross entertainment precinct may be of greater intensity and scale than in other urban villages, they should further Kings Cross' true urban village character.

The Evidence. 10 In addition to the evidence of Mr Atkins (CAE) - Exhibit 3, other expert evidence was presented by Mr D Brindle (Consulting town planner for the applicant) and Mr A Rees (Area planning manager, City of Sydney) resulting in the joint planning report- Exhibit 4. Sergeant D Whiteway, from the King's Cross Local Area Command gave oral evidence and referred to recent COPS reports for the area.

11 A number of written objections are contained in councils bundle of documents and these have been considered in conjunction with the oral evidence of other residents including Ms A Nevin - proprietor of Café Pralinka that is located opposite the Ladylux, Mr E Alberts - resident from 9 Ward Ave and Mr A Woodhouse - resident from McDonald Street.

12 At the outset of this matter, reference was made to the chronology of uses for the property dating back to 1979, when council approved trading hours for an existing restaurant from 12 noon to 1am the following day. Subsequent approvals were granted to extend the trading hours and then in 1987 the LEC granted consent for a variation of trading hours from 12.00 p.m. to 6.00 a.m. the following day, 7 days a week, and provision of entertainment. This development was described as a "restaurant with recorded music and live entertainment along with dancing operating to 6.00 a.m.".

13 According to the chronology, in August 1997 an application was lodged with the Licensing Court for grant of a nightclub license, to which South Sydney City Council initially objected and then withdrew its objection. Consequently, the on-license (restaurant) 402941 was surrendered and nightclub license 24006580 approved with trading hours until 6 a.m. the following day, was granted by the Licensing Court.

14 Subsequently, other development applications have been lodged in respect of these premises, which make reference to a nightclub use. However, whilst the applicant contends that it has approval for a nightclub, this is disputed by Council and consequently the current application has been lodged to address the situation.

15 Mr Brindle says: "I conclude that the 1987 consent allows the premises to be used for the provision of public entertainment until 6 a.m. The approval of a restaurant to operate in this manner for these hours characterises the development in the terms of what is commonly understood as a nightclub. This use is supported by a place of public entertainment certificate and the grant of a nightclub license and has been acknowledged by Council in its consideration of a number of development applications since. The premises have been used for the purpose of a nightclub late night and early morning for a number of years and continue to be used for that purpose. The principal purpose of the development in the late hours as approved by the Court is a nightclub. The development application does not seek to change that use".

16 Notwithstanding this, the issues of acoustic amenity, antisocial behaviour of patrons and public interest were argued at the appeal. Firstly, Mr Atkins undertook an acoustic assessment based on the applicant's Noise Impact Statements prepared by RSA Acoustics, together with his own site inspections and audits.

17 From this Mr Atkins expressed concerns about noise and vibration impacts on the upper-level Leisure Inn Suites and noise from patrons queuing outside the premises. He conceded however, that on the basis that noise limiters are installed on amplifiers and the rear doors to the premises are fitted with trip switches, then the internal noise from the premises can be controlled to a level that would satisfy Council and LAB noise when assessed at the residential property, 2 Ward Street.

18 Mr Atkins outstanding concern about the noise impacts on the serviced apartments arises because the floor/ceiling structure separating the proposed nightclub from the LIS bedrooms comprises a timber floor over multi layers of plasterboard. When speakers are hung from fixings mounted through the plasterboard ceiling and most likely connected to the bedroom floor joists and bearers, then unsatisfactory levels of noise and vibration are likely to be transmitted through the serviced apartments.

19 Based on his site assessments, Mr Atkins said that noise from patrons outside the premises was clearly audible inside the LIS suites (windows closed) and outside open windows in the residential property at 2 Ward Street and in his opinion this was unsatisfactory.

20 The issue of noise and behaviour from patrons queuing outside the premises was also identified by the objectors as a problem and addressed by the planners. This situation apparently arises due to the popularity of the nightclub entertainment, which regularly creates queuing on the footpath in Roslyn Street until places are available inside. Notwithstanding this, the nightclub has a preferential booking system, which allows designated patrons immediate entry. Presumably this affects the queuing period.

21 Ms Nevins has been the proprietor of the Café Pralinka, which is opposite the subject premises, for 5 years. It operates from 1 p.m. - 3.00 / 4.00 a.m. During this period she has regularly seen patrons queuing outside the Ladylux and behaving in a noisy and antisocial matter. Sometimes, these patrons spill over onto the footpath outside her premises causing disruption to her business and the existing security arrangements seem inadequate, in her opinion.

22 This situation was confirmed by Mr Woodhouse, who regularly visits the Café Pralinka to pick up early morning newspapers as part of his job. He has observed the queuing effects (footpath purloining), constant stream of patrons entering/exiting/re-entering to the premises, occasional fights between patrons of the premises and excessive noise created by Ladylux staff and security personnel.

23 Mr Alberts lives nearby in a Ward Avenue apartment, whose bedroom window overlooks Barcleuth Avenue. His concerns relate to the regular queuing on Roslyn Street of Ladylux patrons causing inconvenience to pedestrians, noise caused by the patrons, antisocial behaviour including breaking bottles in the adjoining lane and noise from various sources. In response to his complaints, he has not experienced satisfactory remedial action from the security personnel.

24 In supporting the proposal, Mr Brindle says that the premises are located within the entertainment precinct and Roslyn Street is active in the day and night with people walking between Darlinghurst Road and Ward Avenue to access other entertainment venues, to gain access to taxis or to access residential areas for cars parked in the area. He does not consider any occasional patrons queuing activity on the northern side of the street is unsatisfactory, when temporary barriers are used to contain queues that form at peak times.

25 Instead, Mr Brindle says that appropriate conditions of consent can be imposed to cover these matters, which include: o restricting the hours of operation to 3 a.m., with the hours being extended to 5 a.m. for a trial period of 12 months, o conditions restricting on-street queuing, o increasing security personnel, o provision of surveillance cameras, o implementation of the provisions of a Plan of Management (POM) and Security Management Plan (SMP).

26 Against this, Mr Ree's says the proposal will have an unreasonable impact on the residential amenity in the vicinity of the premises from noise, behaviour and numbers of patrons and hours of trading, when considered in terms of the s 79(c) considerations. His reasons include: o Noise from amplified music generated within the premises cannot be controlled to levels that would satisfy criteria for assessing noise impacts recommended by Council and LAB in the LIS suites, o noise from patrons queuing outside the premises cannot be controlled to satisfactory levels, o the existing ' nightclub' operations has generated various amenity complaints and with the Smoke Free Environment Act coming into effect from 1 July 2007. There is a greater likelihood of patrons from the proposed nightclub congregating outside in Roslyn Street and Barcleuth Lane, thereby exacerbating noise nuisance problems.

27 Sergeant Whiteway provided COPS system reports relating to Ladylux showing that a number of antisocial incidents have been attributable to Ladylux patrons. He is particularly concerned about pedestrian congestion and safety and supports recent conditions on other developments, which restrict patrons queuing on footpaths.

Conclusions. 28 In determining this matter, I have considered the evidence and the submissions based on the issues raised and undertaken a view, in order to determine the merits of the proposal. I have not given detailed consideration to the applicant submissions that it has existing consent for a nightclub. That is a separate matter.

29 Insofar as some of the issues can be grouped, a critical issue concerns noise impacts. In this regard, I have carefully considered Mr Atkins assessment and accept that mechanical noise disamenity should be able to be controlled to a reasonable level, so as to avoid adverse impacts on the neighbourhood. This can be covered by conditions of consent.

30 However, I am not satisfied that there has been adequate investigations to confirm that unacceptable levels of noise and vibrations will not be transmitted to the first floor and upper levels of the Leisure Inns suites. This issue was clearly identified and considering the older style joist and bearer flooring/ceiling structure existing in the building, warrants detailed investigation and resolution prior to the issue of any consent, in my opinion. I give little weight to the fact that no objections have been lodged from LIS, and instead consider that the public interest is well served by requiring reasonable levels of sound and vibration attenuation in any consent, that affects these short stay accommodation premises. Therefore, I consider this unresolved issue is an unsatisfactory aspect of the proposal.

31 The next significant issue concerns patron behaviour. It seems to me from the evidence, that the existing operations of the 'nightclub' have generated a regular stream of complaints about noise and antisocial behaviour. Whilst I accept the premises are located within the Kings Cross "entertainment precinct", nevertheless it is also located adjacent to the mixed use transitional zone, which is to provide a buffer to the residential areas. Consequently, I give heightened weight to the premises relatively close proximity to existing residential apartments and consider that adequate patron control measures should be formulated, prior to the issue of any consent.

32 In this regard, the applicant relies on the Plan of Management/Security Management Plan. However, I have significant concerns about the stated patron entry arrangements. It is apparent from the evidence that the premises are an attractive entertainment venue and that queuing on the footpath regulars occurs because of the limited entry alcove and requirements for patron eligibility checking. It is also apparent that the entry foyer arrangement is inadequate to accommodate patron entry without regular use of the footpath (public) domain.

33 The SMP provides that: The outside security guards duties include the following: (a) maintain the orderly queuing of patrons at the entrance; i) maintain the queuing procedures by: Placing into position the gold coloured aluminium bollards and ropes (6 bollards in total), together with a red carpet, at the entrance of the premises, at the beginning of a shift, to clearly define any queue. ii) The queue is to commence at the front of the entrance to the premises at 2 Roslyn Street and head in the direction of Darlinghurst Road. iii) No more than is 6 persons are to be permitted to enter the premises at one time iv) Security guards should ensure the queue is processed quickly v) There is to be no build up of patrons at the entrance. 34 Insofar as clarification of the extent and length of time of the queuing on the footpath was sought, final details were not provided, except for Mr Brindle's indication that the queue may extend for about 6m at times. Accordingly, I note Mr McEwans submissions that footpath queuing is a practice that is engaged in elsewhere such as at The Emperor, Barrons and Favella and therefore should be acceptable for the subject premises.

35 However, Mr Rees says that there is no current Council policy on footpath queuing. Based on the evidence presented to the Court, I consider it reasonable to address the entry requirements to the Ladylux, prior to the issue of any consent. In particular this includes an assessment of the size of the entry foyer and impact of the proposed bollarded areas, the associated control by private security personnel in the public domain and matters of pedestrian safety and convenience, as raised by Sergeant Whiteways.

36 In the ultimate, I am satisfied that this venue has regular entertainment attractions, which result in it achieving its maximum capacity of 180 persons. Presumably these attractions result in some queuing, taking into account the limited entry size, the preferential entry arrangements, resulting in some patrons queuing for an uncertain period before spaces inside are available. I therefore accept Sergeant Whiteways evidence that this form of queuing is undesirable and should be avoided.

37 Furthermore, as the subject premises is in close proximity to the adjoining mixed use transitional zone containing residential properties, I consider that any queuing and arising antisocial behaviour should be minimised in this location. The evidence does not indicate to me that this is the situation based on past performance, even though security personnel have been provided. I also have concerns about this continuing disamenity pursuant to the application of the Smoke Free Environment Act coming into effect on 1 July 2007. No substantive response was given to this concern, and I therefore conclude this is likely to increase patron entry/exits and thereby increase disamenity rather than preserve or reduce it.

38 In summary I am satisfied that this development depends to a significant level on the exclusive use of the footpath and that this raises policy consideration matters, which apparently have not been undertaken. I am aware that other entertainment developments in Darlinghurst Road provide larger entry lobbies to check incoming patrons, without disrupting pedestrian activity in the public domain. In the absence therefore of specific details of the queuing arrangements, I consider this policy issue should be resolved prior to the issue of any consent, so that the interests of all stakeholders are reasonably considered.

39 For these reasons then, I do not consider that this proposal makes satisfactory provisions for noise and vibration attenuation to the upper level Leisure Inns rooms, as stated by Mr Atkins on whose evidence I rely and this contributes to the refusal of the application.

40 Also, the requirement for exclusive use of the footpath area has not been sufficiently detailed in my assessment, raising the question the use has outgrown the site, as submitted by Mr Clay. I therefore conclude that objective (h) of the Mixed Uses Zone "to ensure that nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic, or other factors, is controlled so as to preserve the quality of life for residents in the area" is not satisfied. In my assessment, this proposal in such close proximity to the residential areas it is likely to diminish the quality of life for the residents and therefore it should be refused. Court Orders

1 The appeal is dismissed. 2. Development consent to Development Application D/2006/564 for a change in use to a nightclub at 2 Roslyn Street, Potts Point is refused. 3. The exhibits may be returned except for Exhibits 3, 4, F and G.

      R Hussey
      Commissioner of the Court
      Ljr/dlc

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.