Ryan v Sutherland Shire Council

[2006] NSWLEC 142

Land and Environment Court

of New South Wales

CITATION:	Ryan v Sutherland Shire Council [2006] NSWLEC 142
PARTIES:	APPLICANT J Ryan RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	11091 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Modification of consent Licensed premises Extension of hours Social impact .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 96
CASES CITED:	Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277; Vinson v Randwick Council [2005] NSWLEC 142; .
DATES OF HEARING:	23 and 24 March 2006
DATE OF JUDGMENT:	03/30/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr D Wilson, barrister INSTRUCTED BY Mr J Ryan, solicitor RESPONDENT Mr A Pickles, barrister INSTRUCTED BY Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

30 March 2006

05/11091 J Ryan v Sutherland Shire Council

JUDGMENT

Introduction

1 COMMISSIONER: This is an appeal pursuant to s 96 of the Environmental Planning and Assessment Act 1979 against the refusal by Sutherland Shire Council (the council) of an application on behalf of the management of the Gymea Hotel (the hotel) to vary the presently approved trading hours of the hotel.

2 The present approved hours are set out in Condition 66 of Development Consent No. 03/0661 which relevantly states:

... the use of the premises shall be restricted to between the hours of 5.00 am, and 12.00 midnight Mondays to Saturdays, inclusive, and between the hours of 10.00 am and 10.00 pm, Sundays

3 The modification application seeks to change this to read:

... the use of the premises shall be restricted to between the hours of 5.00 am, and 5.00 am Mondays to Saturdays, inclusive, and between the hours of 10.00 am and 12.00 am, Sundays

4 Council staff refused the modification application, under delegation, on 3 August 2005. The reasons for this decision were given as:

The proposed extension of hours of operation is likely to result in adverse impacts on the amenity of the neighbourhood by reason of increased anti­social behaviour, increased crime incidences and increased noise.

The proposed extension of hours of operation is not in the public interest.

5 The submission by Mr Pickles, counsel for the council, in opposing the proposed modification, was not that an application of this kind of might, at some future time, be capable of approval, on some form of trial basis, but that it was premature to do so now. I note that the hotel management, itself, now only proposes that the extended hours be permitted on a trial basis.

The hotel

6 The hotel site is situated at 41 - 45 Gymea Bay Road, Gymea (Lot B DP 367479). The previous hotel building located on the allotment was destroyed by fire in September 2004 and a new hotel building is presently being erected. This is expected to commence trading toward the middle of 2006.

7 The hotel was located on an irregularly shaped allotment of 5,200 sq m with a frontage of ~ 47 m to Gymea Bay Road and a depth of ~ 97 metres. The allotment is, effectively, level.

8 The hotel site is within the Gymea Shopping Centre. Immediately to the north is a community centre complex comprising a community aid and information centre, a community hall and an early childhood centre. To the north west and west, there are residential flat buildings. To the immediate west is a preschool and a public walkway and access cul-de-sac for the preschool. These link Gymea Bay Road and Talara Road (with the walkway running along the hotel’s northern boundary).

9 The Cronulla railway line runs along the allotment’s southern boundary.

10 To the rear of the allotment was a car park used in conjunction with the former hotel usage. This car park was accessed from Talara Road – the street to the west of Gymea Bay Road and running parallel to it.

11 Significant modification to the car parking arrangements will occur as a result of the rebuilding of the hotel. All vehicle access will be to the front of the premises and the rear parking area and access to Talara Road to the west has been abandoned and the land formerly used for these purposes is to be sold.

The relevant planning principle

12 In Vinson v Randwick Council [2005] NSWLEC 142, I set out (at para 12) the general principles applied by Tuor C in Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277. I then set out (at para 13) the principles to be applied when assessing applications for an extension of trading hours, increase in permitted patron numbers or additional attractions for licensed premises. I said that the tests to be applied were:

1. What are the adverse impacts of the present trading hours, permitted number of patrons and permitted activities?
2. What measures are in place to address those impacts?
3. How are those measures documented?
4. Have those measures been successful?
5. What additional measures are proposed by the applicant or might otherwise be required?

13 In my view, it is appropriate to apply those principles to the present case. I do so, relevantly, below.

History of recent management

14 In 2002, ownership of the hotel passed to the present owners and The Waugh Group (the group) assumed management responsibility on their behalf. The group manages some 35 hotels – primarily in the greater Sydney metropolitan region.

15 It is clear, from the evidence given during the course of the site inspection, that there was, under the former Patrick ownership prior to the group taking over, a significant lack of managerial responsibility, generally, within and about the premises.

16 I accept the evidence given in behalf of the present management that there has been a significant attempt to address issues, from the past regime, that this new management considered were inappropriate and necessary to be rectified.

The adverse impacts of the hotel prior to the fire

The evidence concerning lower level anti-social behaviour

17 In Vinson, when considering how a consent authority should address the first assessment question [What are the adverse impacts of the present trading hours, permitted number of patrons and permitted activities?], I noted, inter alia, that:

Evidence of anti-social behaviour at or linked to the premises taken from records such as the police COPS system and/or other police records and/or diaries kept by local residents is preferable to generalised anecdotal evidence that cannot be tested by the applicant against any records kept by the operator of the premises.

18 In the present case, I have limited police evidence concerning incidents which are properly categorised as being, virtually in their entirety, of more serious criminal moment than the lower (but nonetheless still unacceptable) categories of anti-social behaviour such as foul and/or loud language – particularly when it causes sleep disturbance; defecation or urination in the street or on private property; graffiti; vandalism of property; or throwing of glasses or bottles into private property. This police evidence is discussed later.

19 However, the only evidence I have concerning these lower categories of anti-social behaviour is anecdotal. For the applicant, of course, this arises as a consequence of the fire in September 2004. This has resulted in the applicant having no records concerning behavioural matters in the vicinity of the Hotel. The two witnesses who gave evidence on behalf of Hotel were Mr Brown, the Group General Manager for the group and Mr Lawler, the present licensee.

20 Mr Brown and Mr Lawler both indicated that they were not aware of any such incidents having resulted in complaints to the management of the hotel during the period the group had been responsible for management of the premises. The evidence given by Mr Brown was that the group had not had any significant experiences of anti-social activities, generally, with hotels it manages.

21 It was also his evidence that the group’s hotels were primarily family-oriented and certainly did not provide entertainment on any regular basis calculated to attract younger patrons. A similar pattern of management was proposed for this hotel when it recommenced trading after being rebuilt.

22 Mr Lawler has no recollection of reports of incidents on anti-social behaviour. He confirmed that any written records or documents which might have supported that position (such as the hotel’s incidents book or the manager’s day book) were destroyed in the fire.

23 As a consequence, I am left with this negative evidence together with the extensive objector evidence, given during the course of the site inspection, which related to anti-social behaviour.

24 That objectors’ evidence had one common strand running throughout it. That strand was that there was still anti-social behaviour occurring within the local community, inferentially alcohol influenced or created, and that this was a continuing concern to residents for damage to property ranging from urination and the like through to minor physical vandalism such as damage to letterboxes.

25 Evidence of this nature was given on behalf of the business community of Gymea; the Gymea Nursery School and Kindergarten; and from a number residents living in the vicinity of the hotel. It was also given on behalf of the local Roman Catholic parish whose church and parish school are located in reasonable proximity to the south of the site along Gymea Bay Road.

26 Mr Barry Collier MP, the State Member for Miranda, also gave evidence of reports to his electorate office concerning anti-social behaviour associated with the past operation of the hotel.

27 In addition to that general strand of continuing anti-social behaviour, there are was quite specific evidence given by a number of objectors that, during the period since the hotel had ceased trading as a consequence of the fire, the level and frequency of such anti-social behaviour had decreased.

28 The President of its parent body gave this evidence on behalf of the preschool. Although her evidence concerning the hotel’s trading period prior to the fire was clearly hearsay (she not having become president until 2005), I accepted it as being put not merely from her own memory but from the corporate memory of the parent body.

29 Evidence of this trend was also given by or on behalf of a number of residents and by two of the small business managers trading in the local shopping strip in Gymea Bay Road. Two other residents who lived some further distance away from the site (but who also experienced the impact of late night anti-social behaviour) also gave evidence to the same effect.

The applicant’s submission on the objectors’ evidence

30 Mr Wilson, counsel for the applicant, submitted that I should disregard this objector evidence as being merely anecdotal and, and as a consequence, difficult if not impossible for the applicant to counter.

31 I reject this submission for two reasons.

32 The first is that, contrary to what would have been the normally expected position, the hotel itself has no written records able to be put in response. There is no suggestion of fault in saying this, merely a bald restatement of the earlier noted actual consequences of the fire which destroyed the premises. Thus the only evidence on this issue, on behalf of the applicant, is also only anecdotal but is evidence I am asked by Mr Wilson to accept.

33 More tellingly, however, was the evidence given by Mr Lawler that, during his period as licensee of the premises on behalf of the group, on the occasions when the hotel had employed security guards, those guards only patrolled within the site or those parts of the footpath of Gymea Bay Road in the immediate vicinity of the premises.

34 It was Mr Lawler’s evidence that, although not required by the December 2003 Plan of Management for the hotel, it was a regular practice on the busier evenings to have one or two security guards employed by the hotel.

35 The fact that, on such occasions, the security guards had such a limited area of patrolling off the premises means that there is no possibility of evidence of any observation by them that might otherwise have been made concerning anti-social behaviour and its causes in the broader area of concern to the local residents (as might have been the case had a wider and more appropriate patrolling precinct been observed).

36 As a consequence, I accept that the lower-level anti-social behaviour has decreased during the period when the hotel has not been trading. The nature of the evidence is such that I can also only conclude that that the decrease in anti-social behaviour also arises as a consequence of the hotel not trading.

Police objections

37 Evidence was given on behalf of the NSW Police Service by Sergeant Stanton who is the Licensing Sergeant for the local area command within which the hotel is located. The Police Service oppose the application.

38 He produced two incident report tables, for comparison, between the twelve month period immediately prior to be fire which destroyed the hotel and the twelve month period which ceased shortly prior to the hearing of this appeal.

39 In purely statistical terms, for the area defined by the sergeant and the range of offences defined by him, the police computer records were interrogated to provide a bare bones analysis of that information together with a pair of clustering maps locating where the various incidents took place.

40 It is clear, from a consideration of this material, that the raw data shows a significant difference between the incidents in the number of the matters of concern the police between the period when the hotel was trading and period when it was not.

41 However, this evidence should, in my view, be considered with significant reservations about its utility. Indeed, I have concluded that it would be inappropriate to draw any inferences adverse to the hotel from it.

42 I have so concluded for the following two reasons.

43 First, the covering memorandum with this material urges caution about unreservedly accepting the accuracy of the locational maps because of changes to the computer software used to plot the locations of the earlier data set incidents.

44 Second, the statistical data and the limited information available in support of it is not in a form which permits me, with any confidence, to support any conclusions - particularly not conclusions which would be adverse to the hotel - notwithstanding the decrease in recorded incidents during the period when the hotel was not trading.

45 For example, offences which were committed against the hotel itself (such as stealing from the bottle shop), show up in these tables and, obviously, are not capable of supporting any adverse inference against the hotel management itself.

46 There are other reasons arising from lack of specificity or details which reinforce my decision to conclude that I will not draw any adverse inference whatsoever from the police information relating to the more serious behavioural elements about which I am invited to draw such conclusions.

Conclusions
The early “daylight” trading concerns

47 Given the present permitted trading hours of the hotel, the concerns which were expressed on behalf of the church and the preschool about the possible interaction, in the early mornings, with departing patrons of the hotel, this can be of no import in these proceedings as the hotel is already permitted to trade, should it choose to do so, commencing at 5am on six days the week.

The proposed late night “lockdown”

48 With respect to the late-night extension proposed between midnight and 5am, six nights a week, Mr Wilson proffered, on behalf of the hotel, a condition that it would be a “lock down” from 2am, prior to the closure of other late-night alcohol facilities in the locality such as the Trade Union Club, which would mean that only those patrons who were already within the premises at 2am would be permitted to stay and no new patrons will be pair met prior 8am. This, it was suggested would diminish and, during those hours, remove the so-called “honey pot effect” of attracting persons to the hotel after other drinking venues within the Sutherland Shire had ceased trading for the night. It was suggested that this would be no more than twenty or thirty remaining patrons.

49 This “lock down” was acceptable to the hotel as its primary source of revenue (at least from such late night patrons) is from gambling rather than from alcohol consumption.

50 I do not accept that this will necessarily reduce the anti-social behaviour in the surrounding area which is likely to be caused by departing pedestrian patrons – even at a lower level of patronage (which I accept would occur as a result of a “lock down”).

51 Mr Brown gave evidence on travel modes which came from surveys conducted at other hotels operated by the group. Although the significantly changed parking arrangements can be expected to eliminate any late night adverse vehicle door slamming; engine starting; or other “rev head” vehicle noise for the residents of Talara Road, Mr Brown’s evidence was that between 1 in 4 and 1 in 5 patrons drove themselves to the group’s hotels (and that these ratios decreased later in the evening).

52 Mr Brown’s survey data did not shed any further light on how the other 75% to 80% of patrons arrived or departed (whether on foot; as vehicle passengers driven by another patron, by taxi; or by public transport).

53 However, it is reasonable to conclude, as a subsidiary conclusion derived from that set out earlier concerning anti-social behaviour in the nearby streets, that some of these patrons depart on foot and behave in the fashions complained of by the objectors.

54 For the first of the Vinson tests, I am unable to quantify this behaviour with precision but I am able to conclude that I am satisfied as to its existence and that the causation of at least part of it lies with patrons of the hotel, during the group’s management of the hotel.

55 In any event, a “lockdown” would not have any preventative value prior to its commencement at 2am.

Plans of Management

56 The hotel proffered a revised Plan of Management dated March 2006. Mr Brown conceded that this was based on a generic plan of management from within the group for the various hotel premises managed by the organisation.

57 This Plan of Management was amended as a consequence of a number of preliminary comments made by me concerning a number its provisions.

58 Sergeant Stanton gave evidence that, in his opinion, security guards would be require from at least 9pm on any trading night and that a minimum of four was necessary and that an extended patrolling area encompassing not merely the immediate environs of the hotel and the shopping strip but also relevant surrounding residential streets.

59 However, the area from Gymea Bay Road through to Talara Road, along the council reserve and pathway, was considered by Mr Brown as being an inappropriate area to be patrolled because of his concerns, on occupational health and safety grounds, for the safety of the patrolling security guards due to lack bold that adequate lighting. He conceded that this problem could be addressed if the guards patrolled in pairs.

60 I am satisfied that the March 2006 Plan of Management, even though significantly improved from its version at the commencement of proceedings, would still require significant further amendment to reflect appropriate security guard numbers and their commencing times. As well, their patrolling patterns, broadly consistent with Sergeant Stanton’s evidence might provide, if implemented, a basis for addressing the anti-social behaviour in the general vicinity of the hotel.

61 Given these defects, I am satisfied that it is, as the council suggests, premature to alter the trading house of the hotel prior to its recommencement of trading after rebuilding because I cannot be satisfied that the adverse impacts caused by patrons of the hotel in the past can be cured by the proposed management regime for the rebuilt premises – even during the present permitted trading hours.

62 As consequence, in response to the fourth Vinson question, I am satisfied that the measures which were in place during the previous trading regime of the hotel were not successful.

63 As further consequence, in response to the fifth Vinson question, I am satisfied that the additional measures proposed are not ones which I would have confidence will addressed by improving, (although accepting that elimination of anti-social behaviour, in its entirety, is not possible), the levels of such behaviour in the area for which hotel should take an appropriate degree of social responsibility.

64 The appropriate course of action for to follow is to suggest to the management of the hotel that they implement such plan of management as they consider appropriate in light matters which have arisen during these proceedings and, after an appropriate period of implementation of such a plan of management, on the present trading hours and armed with such observational material and is might come from such a regime, management could consider, sometime in the future of its own choosing, whether or not they wish to make a further application for modification of the presently permitted trading hours.

65 However, I am satisfied that the time is not now as it is not appropriate to conduct an experiment on the local community on some wider basis than would presently be permitted when an experiment is already available and desirable based on the presently permitted trading hours.

66 The orders of the Court, therefore, are:

1. The appeal is refused;
2. The application to modify the trading hours contained in Condition 66 of Development Consent No. 03/0661 for the Gymea Hotel is determined by the refusal of development consent; and
3. The exhibits are returned.

Tim Moore
Commissioner of the Court