Rifon Pty Ltd v Sydney City Council

Rifon Pty Ltd v Sydney City Council - [2006] NSWLEC 778 - NSWLEC 2006 case summary — Zoe

[19]

12 The proposal is permissible with consent. 13 Clause 10 of the LEP relates to zone objectives and general development controls and states: o Except as otherwise provided in this plan, the Council must not grant consent to the carrying out of development of land to which this plan applies unless the council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located. 14 Clause 8 of the LEP requires Council in its assessment of a development application to consider the goals and objectives contained in the Strategy for a Sustainable City of South Sydney to the extent that they relate to the proposed development. 15 Clauses 22 to 27 inclusive relate to heritage conservation. The subject site, whilst not a heritage item, forms part of a Streetscape Area (HS4 - Darlinghurst Road), a heritage conservation area (CA19 - Elizabeth Bay Conservation Area) and is located in the vicinity of a number of heritage items. 16 The provisions of these clauses require the consideration of the proposed development in relation to its impact upon the significance of the heritage streetscape area, heritage conservation area and neighbouring heritage items. The proposed development's compliance with the heritage provisions have not been raised as an issue in these proceedings. 17 Clause 28 of the LEP contains provisions relating to built environment design principles and master plans. The proposed development's compliance with subclauses 28(d) and 28(h) have been identified as issues in these proceedings as to whether the development: d) has been designed with adequate provision for the intended occupants, and those in the vicinity of the site of the proposed development, in terms of: (i) privacy, and (ii) access to sunlight, and ... (h) encourages complimentary land uses and activities. 18 Clause 37 of the LEP relates to non-residential development within Zone No 10 and states: (1) The object of this clause is to promote the objectives of Zone No 10 and to allow buildings or parts of buildings in that zone which are used for residential purposes to be used for mixed use purposes while ensuring that the mixed use does not have an adverse impact on the character of the suburb.

[42]

42 However, it is quite apparent from the objections and police evidence that there are fundamental differences on the application of this part of the DCP. Acting lnspector Whiteway said that Kings Cross has: "as far as licensed premises are concerned, it has reached saturation point. We, as police, are an important community stakeholder in Kings Cross. We have first hand experience with dealing with the enforcement of legislation pertaining to those premises and it is our view that the area, at present, the most densely populated as far as licensed premises per capita of its population in Australia." 43 When asked by Mr Clay, what indicia does he look at to establish this "saturation point?" Acting lnspector Whiteway referred to the following points: o first hand experience in the area, where he has noticed an obvious increase in workload over the last 4 years, particularly with alcohol-related crime in the area, o performance indicators for categories of assaults, malicious damage and stealing have, increased, o problems with increased motor vehicles parking and limited access/exit routes from Kings Cross, particularly when the main reason people come to Kings Cross between 1 am and 5 am is to drink, in his opinion, o receipt of complaints from residents who advise the police of specific licensed premises where persons causing the nuisance have apparently departed. 44 Insofar as questions about the utility of the proposed private security arrangements in the POM were put to Acting Inspector Whiteway and he expressed some reservations about this method of control, nevertheless he said that: "Security from my point of view is probably our greatest untapped resource. If we have good security at licensed venues then our problems certainly dissipate a great deal. The problem is finding those people. It is not up to us to employ them, it is the management of the licensed premises who employ their own security ..." 45 In terms of possible initiatives to deal with the antisocial behaviour in the street, after patrons have left the licensed premises, Acting Inspector Whiteway said that this concern had been considered in the Liquor Accord but difficulties experienced with its implementation and funding. He was unaware whether s 94 contributions could be directed towards this matter, so that some co-ordination of private security arrangements could be achieved.

[50]

54 For an objective assessment, however, the planners referred to the Ealing Town Centre - Case Study (Study), whose aims were: o to determine, in the local context, how Ealing might measure 'cumulative impact' and determine what particular indicators of 'saturation point' or carrying capacity are meaningful, in terms of managing the negative impacts of the late night economy." 55 The Study defines 'cumulative' as meaning 'growth in quantity, strength, or effect by successive additions'. In this context it defines 'impact' as 'to have an impact or strong effect on'. It then describes 'cumulative impact' as the 'compounding effect' of a particular phenomena then lists the following statements that may be used to describe the cumulative impact of the addition of multiple, new or extended licensed premises in a particular locality: o The compounding effect of amenity, crime, nuisance and infrastructure issues associated with multiple licensed premises in a defined catchment area o An over concentration of licensed premises in a locality. o Where the cumulative effect of many licensed premises concentrated together causes unacceptable problems of crime, public disorder and nuisance, due to the numbers of people arriving and moving between such venues. o A saturation of licensed premises that attracts customers to an area to such a degree that has an adverse impact on the surrounding area that is beyond the proper control of individual licence holders and relevant authorities. o Cumulative impact is the disruption that occurs when conditions have deteriorated to the point where activity in one area of activity is that adversely affected by changes and/or additions to the activity in another area of activity. 56 From these statements, the Study says that the unacceptable cumulative impact of licensed premises can be defined, for the purposes of the Study as: The concentration of many licensed premises in a defined area and the associated impacts of crime, public disorder and nuisance that are above acceptable levels, and beyond the proper control and management of licensees, police, the local authority and other agencies.

[53]

59 Importantly then, the planners say that: "Once the data is collected, analysis of that data would require the setting of benchmarks for the various indicators to guide the determination of acceptable and unacceptable impacts. The setting of those benchmarks would necessarily involve assumptions and it is our joint opinion that any such assumptions should be explicitly stated and be the subject of extensive public consultation in the formulation of any recommended plans or strategies that flow from the study." 60 Accordingly, the following primary indicators are listed: Safety and Security: - Number of incidents in licensed premises, - Number of incidents in the public domain, - Number of incidents - assaults (including verbal), - Number of incidents - malicious damage, - Number of incidents - disorderly conduct. Other: - Number of substantiated noise complaint directly related to licensed premises, - Number of waste complaints (urination, defecation, broken glass, vomit) directly related to licensed premises. - Existing number of other licensed commercial uses operating during trading hours in the study area, - Frequency and scale of special events within or adjacent to the study area. In the licensed premises: - Presence/absence of on-site smoking locations, - Capacity to have Outdoor Dining Footway Licence, Presence/absence of a Place of Public Entertainment Licence, Presence/absence of a Plan of Management for licensed premises (especially ratio of security staff to an approved number of patrons) Mix within premises (number of bars, presence/absence of food service etc). 61 As I have stated previously, there is no substantive evidence which enables an objective assessment along either of the aforementioned methodologies. Furthermore, no supporting material was presented which showed objective evaluation criteria for the determination of cumulative impacts/trade-offs or any strategies for avoidance, minimisation or mitigation measures to address the competing objectives and determine the appropriate balance between entertainment uses and residential amenity. Conclusion 62 Having considered the evidence, the submissions and undertaken a view, I am satisfied to rely on both the Court-appointed planning and acoustic expert opinions that this development satisfies the current controls and merits conditional consent. Of importance in this determination, is the condition that the development operate for trial period of 12 months to enable assessment of its operations and achievement of a "good neighbour" relationship with the nearby residents.

[60]

69 In the ultimate, no substantive, strategy details were presented to the Court, which indicated the overall public interest would not be well served by this development that reasonably satisfies the requirements for development within the Kings Cross Entertainment Precinct. If the saturation point has been reached, I expect some actual details as mentioned in the planners joint conference could have been provided to confirm this situation. This did not occur and the existing controls are being maintained, which continue to allow entertainment uses. Court Orders 1. The appeal is upheld 2. Development consent is granted to development application D2006/00429 for alterations to the building at 23-31 Darlinghurst Road, Potts Point, and its use for a restaurant/night club, subject to the conditions in Annexure A. 3. The exhibits may be returned except for 3, 4, 6, 18, 20, 24, 25, 26, 27, C, D, G and L.

      R Hussey
      Commissioner of the Court
      rjs

At a glance

Court

Decision date

Before

Source

Judgment (61 paragraphs)

Parties

Cited By (2)