,whp · management) of the sydney dcp 2012. ... the queue shall be a maximum length of 20 patrons...

Local Planning Panel 5 February 2020

Development Application: 13-15 Kellett Street, Potts Point

File No.: D/2019/1135

Summary

Date of Submission: 11 October 2019

Applicant: Iguana Bar and Restaurant Pty Ltd C/ Design Collaborative

Designer: Diverse Design Group

Developer: Iguana Bar and Restaurant Pty Ltd

Owner: Sven Pty Ltd

Cost of Works: $5,000

Zoning: Restricted premises are permissible within the B4 Mixed Use zone

Proposal Summary: Approval is sought for the use of the ground floor as a restricted premises (adult entertainment premises) in conjunction with the existing licensed bar and restaurant known as 'Dollhouse Nightspot', with hours of operation of 24 hours, 7 days per week. The application includes alterations to the external rear courtyard wall to provide emergency egress.

In accordance with the Minister's Direction, development applications for the purpose of restricted premises are sensitive development and must be determined by the Local Planning Panel.

The premises has approval as a restaurant with capacity of 270 persons and hours of operation 24 hours, 7 days per week.

Unauthorised works have been carried out to the premises including removal of the kitchen and fit out of new seating booths, stages and poles. Due to the removal of the kitchen, the preparation of food is not proposed and the proposed use is not defined as a restaurant. The premises appears to have operated as an adult entertainment premises since mid-2014 without consent.

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Item 7.


The NSW Police provided a submission which details the issues arising during operation of the premises, which resulted in the previous licensee being disqualified from holding a liquor licence.

The proposal is inconsistent with the objectives of the B4 Mixed use zone as the use as a restricted premises is not compatible with the adjoining residential uses.

The proposed use and location is inconsistent with the provisions of Section 4.4.6 (Sex Industry Premises and Adult Entertainment) of the Sydney DCP 2012.

The proposed hours of operation are inconsistent with the provisions of Section 3.15 (Late Night Trading Management) of the Sydney DCP 2012.

The application was notified for 21 days between 24 October 2019 and 15 November 2019. There were 3 submissions received primarily relating to the amenity impacts on residential uses.

Summary Recommendation: This proposal is recommended for refusal.

Development Controls: (i) Sydney Local Environmental Plan 2012

(ii) Sydney Development Control Plan 2012

Attachments: A. Selected Drawings

B. Submission by NSW Police (Confidential)

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Recommendation

It is resolved that the Development Application No. D/2019/1135 be refused for the following reasons:

(A) The proposal is inconsistent with the aims of the Plan under Clause 1.2(h) of the Sydney LEP 2012 to enhance the amenity and quality of life of local communities.

(B) The proposal is inconsistent with the objectives of the B4 Mixed Use zone of the Sydney LEP 2012 as a restricted premises is not compatible with the residential uses within the building and on adjoining properties.

(C) The proposal relies on unauthorised works that have been carried out to the premises, and these works do not exhibit design excellence and detract from the significance of the heritage item which is inconsistent with Clause 6.21 (Design Excellence) and Clause 5.10 (Heritage conservation) of the Sydney LEP 2012 and Section 3.9 (Heritage) of the Sydney DCP 2012.

(D) The application seeks to use the premises as a restricted premises in conjunction with the existing bar and restaurant. Unauthorised works have been carried out to the premises including the removal of the kitchen and the premises is no longer defined as a restaurant.

(E) The proposed use as an adult entertainment premises is inconsistent with the provisions of Section 4.4.6.1 (Location of Premises) of the Sydney DCP 2012 due to its proximity to residential uses and other sex industry premises.

(F) The proposal provides inadequate staff facilities and is inconsistent with the provisions of Section 4.4.6.4 (Health, Safety and Security) of the Sydney DCP 2012.

(G) The proposed hours of operation are inconsistent with the trading hours permitted within the Local Centre and inconsistent with the provisions of Section 3.15 (Late Night Trading Management) of the Sydney DCP 2012.

(H) The submitted Plan of Management has not adequately addressed the provisions of Section 3.15.5 (Plan of Management Requirements) and Section 4.4.6.6 (Management of Operations) of the Sydney DCP 2012.

(I) Insufficient information is provided to demonstrate how equitable access can be provided and the proposal does not satisfy Section 3.12 (Accessible Design) of the Sydney DCP 2012.

(J) Insufficient information is provided addressing the potential social impacts of the proposed use, in particular to adjoining residential uses, in accordance with Section 3.13 (Social and Environmental Responsibilities) of the Sydney DCP 2012.

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(K) Insufficient waste storage information is provided and the proposal does not satisfy Section 3.14 (Waste) of the Sydney DCP 2012.

(L) The site is not suitable for the proposed development and is inconsistent with Clause 4.15(1)(c) of the Environmental Planning and Assessment Act 1979.

(M) The proposal is not in the public interest and is inconsistent with Clause 4.15(1)(e) of the Environmental Planning and Assessment Act 1979.

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Background

The Site and Surrounding Development

1. A site visit was carried out by staff on 26 November 2019.

2. The site is rectangular, with area of approximately 525sqm. It has a primary street frontage to Kellett Street and a secondary street frontage to Mansion Lane. The site contains two terraces that are part of a row of three storey terraces.

3. The ground floor of the two terraces has been consolidated, with a central entry from Kellett Street and a partially enclosed outdoor seating area within the front setback. The premises has development consent for a restaurant, however has been used as a restricted premises without development consent.

4. The two upper levels are used for residential dwellings, with 4 one-bedroom dwellings and 2 two-bedroom dwellings. There are two residential entries and stairs from Kellett Street on either end of the site. The dwellings have balconies facing Kellett Street and Mansion Lane.

5. Surrounding land uses include residential, commercial and brothels.

6. To the east of the site is a terrace at 17 Kellett Street containing 3 one-bedroom dwellings, 1 two-bedroom dwelling and 1 commercial tenancy. Further east is a residential apartment building at 19 Kellett Street. To the west of the site are terraces at 9 and 11 Kellett Street which contain commercial uses at ground floor level and residential uses above.

7. On the opposite side of Kellett Street are brothels at 48 and 50 Kellett Street, a commercial terrace at 52 Kellett Street, and a mixed use commercial and residential development at 54-64 Kellett Street.

8. The site is a heritage item (I1135) being Terrace Group (13-17 Kellett Street) including interiors and front fencing. The terrace group comprising 3-11 Kellett Street directly to the west is a heritage item (I1134). The site is located within the Potts Point Conservation Area (C51).

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9. Photos of the site and surrounds are provided below:

Figure 1: Aerial image of subject site and surrounding area

Figure 2: Site viewed from Kellett Street

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Figure 3: The ground floor entry and partially enclosed seating area.

Figure 4: The site viewed from Mansion Lane

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Figure 5: The site viewed from Mansion Lane

Figure 6: Lounge Area 2, with bar and stage area

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Figure 7: Lounge Area 5, which is used for private shows

Figure 8: The rear of the site, being used as a staff area and for storage

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Figure 9: Residential terrace at 17 Kellett Street adjoins to the east of the site

Figure 10: Residential apartments at 19 Kellett Street

SITE

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Figure 11: Terraces to the west at 11 Kellett Street and 9 Kellett Street, which have commercial uses at ground floor and residential above.

Figure 12: The opposite side of Kellett Street, including brothels at 48 and 50 Kellett Street (indicated in red) and a commercial terrace at 52 Kellett Street

SITE

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Figure 13: The property at 54-64 Kellett Street contains a mixture of commercial and residential uses

Proposal

10. Approval is sought for the use of the ground floor as a restricted premises (adult entertainment premises) in conjunction with the existing licensed bar and restaurant known as 'Dollhouse Nightspot', with hours of operation of 24 hours, 7 days per week.

11. The application includes alterations to the external rear courtyard wall to provide emergency egress.

12. Operational aspects of the proposal include:

(a) Capacity of 270 persons, including patrons, staff and performers.

(b) All food provided to patrons is obtained from nearby restaurants.

(c) The premises is only permitted to sell liquor as an accompaniment to food or entertainment.

(d) Liquor shall not be sold or supplied between the hours of 6am and 10am Mondays.

(e) The premises is to operate an ID Scanning System between the hours of 9pm and 1.30am the following day.

(f) The premises, and no member of staff or entertainers are permitted to offer sex services on the premises.

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(g) No member of staff may engage in sexual intercourse with a patron on the premises.

(h) 1 security staff member for every 100 patrons.

(i) Provision of CCTV within the premises and entrances/exits.

(j) The queue shall be a maximum length of 20 patrons on the footway.

13. Plans of the proposed development are provided below.

Figure 14: The proposed floor plan

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Figure 15: The proposed works to the rear wall to create an emergency egress

History Relevant to the Development Application

14. DA11/02/1046 - On 21 April 1980 consent was granted for alterations to the building for the use as residential flats with a restaurant on the ground floor 13 Kellett Street and commercial premises at the ground level of 15-17 Kellett Street, including provision of one parking space, one loading dock, and remainder of the ground floor to be landscaped for use by the residential flats.

15. DA11/02/1046 - On 6 May 1980 consent was granted to use the front of the ground floor of 15 Kellett Street as a restaurant in conjunction with 13 Kellett Street. Hours of operation were restricted to 7.30am to 12.00 midnight Mondays to Saturdays and 7.30am to 10.00pm Sundays.

16. DA44/80/1105 - On 14 January 1981 consent was granted for the erection of a roof over part of the front yard of 13-15 Kellett Street for use as an outdoor eating area.

17. X88/01685 - On 23 September 1988 approval was granted for a Building Application for a new bar and alterations to the dining room.

18. Q90/01082 - In December 1990 an application was submitted to use the premises as a Place of Public Entertainment. The application was refused on 17 April 1991 as development consent had not been obtained for the hours sought (7.00pm to 2.00am Mondays to Thursdays and 7.00pm to 3.00am Fridays and Saturdays) and for non-compliance with Ordinance 70.

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19. Q93/00116 - On 5 May 1993 consent was granted for an entertainment licence with hours of operating of 7.30am to 12.00 midnight Mondays to Saturdays and 7.30am to 10.00pm Sundays, parking for one vehicle and one loading dock space.

20. U94/00240 - On 22 June 1994 consent was granted to extend the hours of operation of the restaurant and replace an existing pergola. Relevant conditions include:

(a) Conditions 1 and 2 restrict the hours of operation of 7.30am to 3.00am daily to a period of one year, reverting to 7.30am to 12.00 midnight Mondays to Saturdays and 7.30am to 10.00pm Sundays after this period.

(b) Condition 3 restricted live entertainment to a vocalist and pianist from 7.30pm to 3am daily for a trial period of 12 months.

21. U95/00442 - On 9 August 1995 to continue the existing hours of operation of the restaurant and live entertainment from 7.30am to 3.00am daily, on a permanent basis. Relevant conditions include:

(a) Condition 2 restricted live entertainment to a vocalist and pianist from 7.30pm to 3am daily.

22. U96/00370 - On 21 August 1996 consent was granted to extend the hours of operation of the existing restaurant with live entertainment. Relevant conditions include:

(a) Condition 1 restricts the hours of operation between 3.00am and 7.30am daily to a 12 month trial period.

(b) Condition 2 required the operator to prepare a Code of Practice in conjunction with Kings Cross Police prior to the additional hours (3.00am to 7.30am) being taken up. The Code of Practice was endorsed on 4 September 1996.

23. U97/00750 - On 3 December 1997 consent was granted for the continued use of the existing restaurant with live entertainment operating 24 hours daily on a permanent basis. Relevant conditions include:

(a) Condition 1 requires that the use of the premises shall be in accordance with the terms of the previous consents relating to the provision of entertainment and shall continue to operate in accordance with the Code of Practice adopted under U96/00370.

24. U99/00087 - On 5 March 1999 consent was granted for alterations and extension to a storeroom, located on the ground floor of the restaurant.

25. U00/00787 - On 8 November 2000 consent was granted to increase patron numbers and carry out minor alterations. Relevant conditions include:

(a) Condition 3 restricted the number of people in the premises to 267 including staff for a 12 month trial period.

26. DU/2000/787/A - An application to modify the consent was submitted to delete the one year trial period, however the application was withdrawn.

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27. U02/01209 - On 24 January 2003 consent was granted to increase the number of patrons in an existing bar and restaurant. Relevant conditions include:

(a) Condition 1 restricts the number of people in the premises to 267, including staff.

28. DU/2000/787/B - On 24 September 2004 the consent was modified to allow the continuation of the premises as a Place of Public Entertainment. A number of conditions were amended including:

(a) Condition 3 was modified to allow a maximum of 270 persons including staff.

(b) Condition 18 was amended to allow public entertainment use for a two year period from the commencement of entertainment.

Compliance Action

29. The following information details the compliance history on Council's records:

(a) On 20 January 2015 a noise complaint was received due to the rear door being open. The staff closed the door when directed.

(b) On 30 May 2016 a verbal warning was issue relating to the noise limiter.

(c) During October 2018 there were two noise complaints.

(d) On 9 May 2019 a caution was issued relating to illegal dumping.

(e) During May 2019 there were two noise complaints.

(f) On 6 July 2019 a Noise Abatement direction was issued following a noise complaint that was received at 1.15am.

(g) During September 2019 there was one noise complaint.

30. On 23 July 2019 an Order was issued to stop using the ground floor of the premises as an Adult Entertainment Premises. The order also identifies that the kitchen, which was located in the south western portion of the premises (Lounge Area 3) has been removed with table tops with poles for dancing installed with fixed seating.

31. On 19 August 2019 a Class 1 Appeal was submitted against the Order that was issued on 23 July 2019. The appeal is listed for a Section 34 Conciliation Conference on 24 February 2020.

Economic/Social/Environmental Impacts

32. The application has been assessed under Section 4.15 of the Environmental Planning and Assessment Act 1979, including consideration of the following matters:

(a) Environmental Planning Instruments and DCPs.

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Sydney Local Environmental Plan 2012

33. Clause 1.2 outlines the aims of the Plan. The Plan aims to enhance the amenity and quality of life of local communities. The proposal is inconsistent with this aim as it will not enhance the amenity and quality of life of the local community, which is not acceptable.

34. The site is located within the B4 - Mixed Use zone. The application seeks to use the premises as a restricted premises in conjunction with the existing bar and restaurant, which is defined as a restaurant or cafe. These uses are permissible. It is noted that the kitchen (previously located within Lounge Area 3) was removed from the existing restaurant, and it is proposed that all food is obtained from nearby restaurants. Therefore the proposed use is inconsistent with the restaurant or cafe definition which states that the principal purpose is preparation and serving of food and drink. The LEP definitions are produced below:

restricted premises means premises that, due to their nature, restrict access to patrons or customers over 18 years of age, and includes sex shops and similar premises, but does not include a pub, hotel or motel accommodation, home occupation (sex services) or sex services premises.

restaurant or cafe means a building or place the principal purpose of which is the preparation and serving, on a retail basis, of food and drink to people for consumption on the premises, whether or not liquor, take away meals and drinks or entertainment are also provided.

35. The objectives of the zone are:

(a) To provide a mixture of compatible land uses.

(b) To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

(c) To ensure uses support the viability of centres.

36. The proposal is not consistent with the objectives of the zone as the restricted premises use is not a compatible land use with the residential uses that are located within the site and adjoining buildings.

37. The relevant matters under Sydney Local Environmental Plan 2012 for the proposed development are outlined below.

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Compliance Tables

Development Control Compliance Comment

4.3 Height of Buildings N/A A maximum height of 15m is permitted.

The proposal does not seek to amend the height of the buildings.

4.4 Floor Space Ratio N/A A maximum FSR of 2.5:1 is permitted.

The proposal does not seek to amend the FSR of the buildings.

5.10 Heritage conservation No The site is a heritage item and located within a heritage conservation area.

The proposed works to the rear wall to create an emergency egress would not unacceptably impact upon the heritage significance of the site.

Unauthorised works that have been carried out within the front setback, including screening to enclose the outdoor seating area, result in an adverse impact to the significance of the heritage item.

6.21 Design excellence No Unauthorised works that have been carried out within the front setback, including screening to enclose the outdoor seating area, do not demonstrate design excellence.

Division 1 Car parking ancillary to other development

Yes No car parking spaces are proposed.

7.21 Location of sex service premises

N/A The proposal is not defined as a sex service premises and the clause does not apply.

Sydney Development Control Plan 2012

38. The relevant matters under Sydney Development Control Plan 2012 for the proposed development are outlined below.

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2. Locality Statements – Kings Cross

The subject site is located in the Kings Cross locality. The locality statement does not provide any principles relating to restricted premises.

3. General Provisions Compliance Comment

3.9 Heritage No The site is a heritage item and located within a heritage conservation area.

The proposed works to the rear wall to create an emergency egress would not impact upon the heritage significance of the site.

Unauthorised works that have been carried out within the front setback, including screening to enclose the outdoor seating area, result in an adverse impact to the significance of the heritage item.

3.12 Accessible Design No The entry from Kellett Street has an existing step. Information has not been provided to demonstrate how equitable access can be provided, as required by the DCP.

3.13 Social and Environmental Responsibilities

No Concern is raised in regard to the potential social impacts of the proposed use given the location of the subject site which is immediately adjacent to, below and opposite residential buildings.

3.14 Waste No Waste storage has not been indicated on the plans. This is unsatisfactory.

3.15 Late Night Trading Management

No Refer to discussion under the heading Issues.

3.16 Signage and Advertising N/A No signage is proposed.

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4. Development Types

4.6 Sex industry premises and adult entertainment

Compliance Comment

4.4.6 Definitions The proposed use meets the following definitions:

Adult entertainment premises means a premises that:

(a) provides entertainment involving nude or semi-nude performers; or

(b) sells or shows restricted material but at which sex services or sexual activity between people does not occur.

Striptease club means premises providing striptease acts, erotic dancing (including pole dancing), tabletop, or podium performances, private dancing, peepshows, or nude or semi nude bar or waiting staff but where sex services do (not) take place on site.

Note: The word 'not' is omitted from the DCP definition in error.

4.4.6.1 Location of Premises No The premises is located within a building containing a residential use, is immediately adjacent to and opposite land developed for residential purposes, and is within a radius of 75m of existing approved sex industry premises.

This is discussed further under the heading Issues.

4.4.6.2 Design of Premises Yes The proposal is generally consistent with the DCP provisions relating to entrances and exits and the external appearance of the premises.

4.4.6.4 Health, safety and security

No The health, safety and security of staff and visitors is discussed under the heading Issues.

4.4.6.5 Signs No No additional signage is proposed, however there is one existing projecting wall sign and one existing wall sign.

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4. Development Types

4.6 Sex industry premises and adult entertainment

Compliance Comment

The DCP requires that signage is to set out the name of the person or registered name of the business, and the words "RESTRICTED PREMISES". The proposal has not proposed signage that satisfies the DCP requirement. This is unsatisfactory.

4.4.6.6 Management of operations

No Applications for adult entertainment and sex industry premises must be accompanied by a Plan of Management describing how ongoing operations are to be managed.

The submitted Plan of Management has not adequately addressed all of the requirements of the DCP and is not satisfactory.

Issues

Existing consent for entertainment

39. The applicant submits that the existing development consents for the premises permit the provision of 'entertainment' are sufficiently broad to encompass any style of entertainment, including adult entertainment, and that the development consent is sought to consolidate all of the presently approved uses, clarifying the legality of the current use and to provide an up-to-date Plan of Management.

40. On 9 August 1995 consent (U95/00442) was granted to continue the existing hours of operation of the restaurant and live entertainment from 7.30am to 3.00am daily, on a permanent basis. Condition 2 restricted live entertainment to a vocalist and pianist from 7.30pm to 3am daily.

41. On 3 December 1997 consent (U97/00750) was granted for the continued use of the existing restaurant with live entertainment operating 24 hours daily on a permanent basis. Condition 1 requires that the use of the premises shall be in accordance with the terms of the previous consents relating to the provision of entertainment, which means that live entertainment is restricted to a vocalist and pianist as required by the 1995 consent (U95/00442)

42. The previous consents for 'entertainment' are specific as to what entertainment has consent, and not broad enough to include adult entertainment under the previous consents.

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Location of Premises in relation to residential uses

43. Section 4.4.6.1 of the Sydney DCP 2012 provides specific provisions in relation to the location of adult entertainment and sex industry premises. The proposal does not comply with the location provisions of the DCP as residential land uses are located within the building (above), adjacent to and immediately opposite the subject site.

44. The DCP states that the location of adult entertainment and sex industry premises is not suitable in locations adjacent to or opposite from residential uses or other sensitive uses. There is an expectation from the occupants of residential and users of sensitive uses that their amenity, especially in regard to social amenity and safety, will not be adversely impacted by the location of these premises. The provisions require that these uses should be physically separated from residential and sensitive uses by other commercial uses. In this regard the proposed use is not compatible with the residential uses located within the building and immediately adjacent to the site and therefore for this and other reasons, the application is not supported and is recommended for refusal.

45. The objectives of the B4 Mixed Use zone include to provide a mixture of compatible land uses. The subject site is not suitable for the proposed restricted premises land use, as it is not compatible with the residential land uses located within the building and adjacent properties and will impact upon residential amenity.

Figure 16: A location plan indicating residential uses in blue in Kellett Street

Location of Premises in relation to adult entertainment or sex industry premises

46. Section 4.4.6.1 of the DCP states that adult entertainment and sex industry premises must not be located within a radius of 75m of an existing, approved adult entertainment or sex industry premise as measured from the centre of the primary access to the proposed and existing premises.

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47. There are two brothels located opposite the site at 48 Kellett Street and 50 Kellett Street, which are 20m and 18m away respectively. Additionally there is a brothel at 20-22 Kellett Street which is 70m away.

48. The location of the premises will result in cumulative impact of adult entertainment and sex industry premises within Kellett Street and therefore the proposed location is not acceptable and the application is recommended for refusal.

Figure 17: A location plan showing the 3 brothels within a 75m radius of the premises

Late Night Trading Management

49. The application proposes to operate 24 hours, 7 days per week with a capacity of 270 persons (including patrons, staff and performers).

50. The premises has consent to operate as a restaurant with hours of operation of 24 hours, 7 days per week. The kitchen was removed and the premises is no longer consistent with the restaurant definition, as the principal purpose is not the preparation and serving of food and drink.

51. Essentially, the proposal is for use as a restricted premises and bar, which requires assessment as a new use. The proposal is subject to the Late Night Trading Management controls of Section 3.15 of the Sydney DCP 2012.

52. The premises is a Category A High Impact Premises venue, being a premises that has a capacity of more than 120 patrons where the primary purpose is the sale or supply of liquor for consumption on the premises. The DCP identifies that the site is located within a Local Centre area.

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53. The DCP permits indoor trading hours for Category A premises within a Local Centre area between 10am to 10pm and extended trading hours until midnight. The DCP permits outdoor trading from 10am to 8pm, with extended hours between 9am and 10pm. The proposal to operate 24 hours per day does not comply with these controls.

54. Section 3.15.3 of the DCP outlines matters for consideration, which include, amongst others, the following:

(a) Location and context of the premises, including proximity to residential and other sensitive land uses and other late night trading premises.

(b) The specific nature of the premises, its activities and the proposed hours of operation.

(c) The likely impact on the amenity of surrounding sensitive land uses, including noise, and the ability to manage the impacts.

(d) The likely impacts arising from the closing times and patron dispersal of the proposed and existing late night uses.

55. The proposed hours of operation are unacceptable when considering the proximity to residential uses, the specific nature of the premises as a restricted premises, and the potential noise and amenity impacts associated with the premises. An acoustic report has not been submitted with the application.

56. A Plan of Management was submitted with the application. The Plan of Management has not addressed all of the information required by Schedule 3 of the DCP including:

(a) The number and type of staff.

(b) Other similar premises within the company's portfolio.

(c) Details of any measures taken to minimise noise from outdoor areas such as courtyards or designated smoking areas.

(d) any recommendations from Local Licensing Police regarding appropriate security provision and a statement outlining the extent of compliance with police recommendations.

(e) Any provisions to increase security in times where higher than average patronage is expected.

(f) Liaison that will be undertaken with other licensees or operators of late trading premises in the locality/area to improve security at night.

Health and Safety

57. Section 4.4.6.4 of the Sydney DCP 2012 relates to the health, safety and security of staff and visitors at adult entertainment premises.

58. The DCP requires:

(a) At a minimum, the following staff facilities:

(i) Sanitary facilities including toilet, hand basin and shower.

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(ii) A rest area with seating.

(iii) A dining area with food preparation and storage areas.

(iv) A sink with hot and cold running water, water boiling facilities and fridge.

(v) Lockers to store personal belongings.

(b) The staff facilities must be located within the premises, adjacent to and accessible from work areas, and in a secure area that is inaccessible to visitors to prevent inadvertent client contact.

(c) Dressing rooms for the sole use of performers in striptease clubs that include:

(i) Adequate preparation facilities restricted from visitor access and located adjacent to performance areas; and

(ii) Intercom or duress alarm systems linked to a central base and monitored at all times.

59. Notwithstanding that the use as discussed above is not supported the premises is operating without adequate amenities, sanitary facilities or dressing rooms for the performers. The toilet and sanitary facilities for performers are shared with the customers. Lockers are located within the rear courtyard and a store room adjacent to the courtyard is being use a change room. There is no rest area with seating, dining area, or food preparation area for the use of performers.

Other Impacts of the Development

60. The proposed development is capable of complying with the BCA.

61. The proposal will have an unacceptable detrimental effect relating to environmental, social and economic impacts on the locality.

Suitability of the site for the Development

62. For the reasons outlined above, the proposal is not suitable for the site.

Internal Referrals

63. The application was discussed with the Heritage Specialists; Building Services Unit; Environmental Health; Licenced Premises; Safe City whose concerns are discussed under the issues heading above.

External Referrals

NSW Police

64. The premises is understood to have been operating as an adult entertainment venue without development consent since August 2014. The NSW Police have provided a submission which provides background about issues that have arisen during the operation of the premises. The full submission is provided in Attachment B. The submission states:

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(a) In November 2016 the premises 'Dollhouse Nightspot' was subject to an Emergency Closure Order (48 hour closure) following a protracted investigation by both the Kings Cross Licensing and Drug units. Subsequent to the closure, the business owner who was also the licensee at the time was charged with offences under licensing legislation and an administrative complaint was lodged to Independent Liquor and Gaming Authority (ILGA) under section 139 of the Liquor Act 2007. The administrative complaint outlined what Police alleged were serious breaches of the Liquor Act.

(b) On 20 March 2019 ILGA handed down a decision in relation to this complaint. The decision included:

(i) The former licensee was fined $10,000.

(ii) A condition was imposed on the licence of Dollhouse Nightspot restricting the former licensee and another other person who had an interest in the business from entering the premises or having any involvement with the business conducted on the premises.

(iii) The former licensee was disqualified from holding a liquor licence and from being the approved manager of any licensed premises in NSW for life.

(iv) The former licensee was disqualified from being a close associate of a licence for a period of 10 years.

(c) The decision of ILGA was appealed by the business owner/licensee to the NSW Civil Administrative Tribunal (NCAT) in relation to Order 2 (ii) which restricted the former licensee from entering the premises or having any involvement with the business conducted on the premises. On 20 September 2019 the Tribunal handed down its decision and Order 2 (ii) was set aside.

(d) The Police are of the understanding that ILGA is seeking to appeal the decision of NCAT, and due to this possibility the Police are unable to offer further comment outside of the already published decisions of ILGA and NCAT.

65. On 7 January 2020 the NSW Police provided a further submission which details 61 incidents relating to the premises over the past 5 year period:

(a) 2015: 1 x prohibited drug use incident, 2 x assault incidents, 1 x prohibited drug detection incident, 1 x stealing incident, 1 x drink driving incident.

(b) 2016: 1 x stealing incident, 2 x assault incidents, 1 x malicious damage incidents, 6 x intoxication incidents, 1 x assault police incident, 3 x resist/hinder police incidents, 13 x drug detection incidents, 3 x OMCG consorting incidents, 1 x offensive behaviour incident, 1 x fail to quit incident, 1 x affray incident, 1 x major traffic crash incident, 1 x drink driving incident.

(c) 2017: 1 x intoxication incident, 1 x prohibited drug use incident, 1 x stealing incident, 2 x drink driving incidents, 1 x assault incidents, 3 x fail to quit incidents, 1 x prohibited drug detection incident.

(d) 2018: 3 x assault incidents (with one being assault occasioning grievous bodily harm), 2 x drink driving incidents.

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(e) 2019: 1 x drink driving incident, 1 x indecent assault incident, 1 x fail to quit incident, 1 x intoxication incident, 1 x drug detection/supply incident.

Notification, Advertising and Delegation (Submissions Received)

66. In accordance with Schedule 1 the Sydney DCP 2012, the proposed development is required to be notified and advertised. As such the application was notified and advertised for a period of 21 days between 24 October 2019 and 15 November 2019. As a result of this notification a total of 450 properties were notified and there were 3 submissions received.

67. The issues raised in the submission are as follows:

(a) Opposes that Dollhouse Nightspot become a 24 hours a day premises.

Response - The proposed 24 hours operation are inconsistent with the Late Night Trading Management controls of Section 3.15 of the Sydney DCP 2012 and are not supported.

(b) There are already 3 brothels on Kellett Street, with some dubious men attending those and the Dollhouse.

Response - The proposed adult entertainment premises is located within 75m of 3 other adult entertainment or sex premises which results in cumulative impacts and is inconsistent with Section 4.4.6.1 of the Sydney DCP 2012.

(c) The street can be very noisy at 3am when the Dollhouse currently closes.

Response - As discussed above, the proposed hours of operation are inconsistent with the Late Night Trading Management controls of Section 3.15 of the Sydney DCP 2012 and are not supported.

(d) The NSW State Government have chosen to keep the lockout laws in place within the Kings Cross Area. This demonstrates that there are still strong and valid concerns about violence and intoxication within the local area.

Response - The premises have an existing liquor licence and are capable of complying with the liquor licensing legislation.

(e) On Saturday 30 November there was a brawl between several women on Kellett Street at approximately 3am which had to be reported to the police.

Response - The NSW Police have advised that as a result of this incident there were persons arrested and charged with a number of offences. Some of the parties involved were customers of the Dollhouse.

(f) Providing another venue that will only encourage drunk patrons into the street is not in keeping with the increased residential use of Kellett Street. A strip club is no longer appropriate. We shouldn't be encouraging more salubrious behaviour, with the venues and the street being used for drug taking and a meeting point for 'interesting' Kings Cross residents.

Response - The buildings within the site and adjoining building contain residential uses and the proposed location is inconsistent with Section 4.4.6.1 of the Sydney DCP 2012 for an adult entertainment premises. This is unsatisfactory.

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(g) The Dollhouse venue has specifically been the target of police raids and have been fined for inappropriate contact between patrons and employees, as well as for unchecked drug use. The former management of the premises have shown disregard for the law.

Response - This background has been detailed by the submission from the NSW Police.

(h) The brothels that operate in Kellett Street are largely quiet and untroublesome. However a strip club, with extended hours of operation, is a completely different type of venue.

Response - The comment is noted.

Public Interest

68. The proposal is not in the public interest, for the reasons outlined above.

S7.11 Contribution

69. The development is subject of a S7.11 contribution under the provisions of the City of Sydney Development Contributions Plan 2015. The proposal is recommended for refusal and therefore a S7.11 contribution is not imposed.

Relevant Legislation

70. Environmental Planning and Assessment Act 1979.

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Conclusion

71. Approval is sought for the use of the ground floor as a restricted premises (adult entertainment premises) in conjunction with the existing licensed bar and restaurant known as 'Dollhouse Nightspot', with hours of operation of 24 hours, 7 days per week. The application includes alterations to the external rear courtyard wall to provide emergency egress.

72. The proposal is inconsistent with the objectives of the B4 Mixed use zone as the use as a restricted premises is not compatible with the adjoining residential uses.

73. The proposed use and location is inconsistent with the provisions of Section 4.4.6 (Sex Industry Premises and Adult Entertainment) of the Sydney DCP 2012.

74. The proposed hours of operation are inconsistent with the provisions of Section 3.15 (Late Night Trading Management) of the Sydney DCP 2012.

75. Therefore the application cannot be supported and is recommended for refusal.

ANDREW THOMAS

Acting Director City Planning, Development and Transport

Matthew Girvan, Senior Planner

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