Ardilo Pty Ltd v Randwick City Council

STATUTORY CONTEXT 4Section 79C(1) of the EPA Act relevantly provides: "79C Evaluation (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: ... (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, ... (e) the public interest."

THE JUDGMENT BELOW 5The primary contest identified by the Senior Commissioner concerned the council's contention that any increase in patrons of the Hotel would have unacceptable social impacts on the amenity of residents in the vicinity in three respects: (a)Unacceptable social behaviour by Hotel patrons including rowdy behaviour and public urination; (b)Unsatisfactory management of the Hotel concerning matters in the Hotel or within management's control; and (c)Increased demand for parking in surrounding residential areas due to increased numbers of patrons. 6The Senior Commissioner decided the first issue adversely to the applicant and on that basis dismissed the appeal. Consequently, the Senior Commissioner said, it was unnecessary to consider the other issues. 7The Senior Commissioner commenced his reasoning by reference to the framework in his own decision in Vinson v Randwick Council [2005] NSWLEC 142, 141 LGERA 27 . In that case a planning principle was adopted to provide guidance in the assessment of impact from intensification of use of single licensed premises (by increases in permitted trading hours or in the permitted number of patrons). Planning principles are not legally binding but are intended as guidelines to assist resolution of issues that commonly arise in merits review cases: Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587 at [86] (Pain J) . In Vinson the Senior Commissioner said at [12] - [13]: "[12] In Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277, Tuor C considered the principles to be applied when assessing an application for an extension or intensification of a use which may have an adverse impact on residential amenity. She said (at [25] - [26]): 25.Principles for the assessment of an extension or intensification of a use which may have an adverse impact on residential amenity, such as a hotel, are: "First, is the impact of the operation of the existing use on residential amenity acceptable? If the answer is no, then an extension or intensification, would be unacceptable unless there is no overall increase in impact or there are measures proposed which would mitigate the existing impact. Second, if the answer is yes, is the impact of the proposed extension or intensification still acceptable? 26.In answering the first question, it is not sufficient to assume that a use operating in compliance with its approval has an acceptable impact. [13] In amplification of the broad principles set out in Randall, the planning principles for testing an application for licensed premises to extend trading hours, increase permitted patron numbers or for additional attractions such as music or other entertainment require addressing the following questions: What are the adverse impacts of the present trading hours, permitted number of patrons and permitted activities?... What measures are in place to address those impacts?... How are those measures documented?... Have those measures been successful?... What additional measures are proposed by the applicant or might otherwise be required?..." 8In the present case, the Senior Commissioner then referred to more recent cases where applications for intensification of use of particular licensed premises were considered in the context of other licensed premises in comparatively close proximity. 9The Senior Commissioner proceeded to conduct a merits assessment of the first issue, antisocial behaviour in the vicinity of the Hotel, taking account of the following, at [24] - [28] (see also [42]): (a)Other licensed premises in proximity to the Hotel. They comprised the London Tavern, a little over two blocks to the north along William Street; the Grand National Hotel on the corner of Underwood and Elizabeth Streets, some 250 or so metres to the north - east; the Paddington Arms Hotel, 150 metres or so to the east on Oxford Street; and the Imperial Hotel, some 300 metres or so to the west along Oxford Street. The only evidence he had of trading hours of the other hotels related to the London Tavern, which had earlier closing times than the Hotel. The other relevant significant venue at which alcohol may be purchased and consumed is the Sydney football stadium/cricket ground complex, whose alcohol affected patrons may be attracted to attend the Hotel or to move through the locality as part of crowd dispersal after the completion of an event. (b)Evidence of present antisocial behaviour resulting from the land use. (c)Measures in place to address antisocial impacts. 10That led to consideration of two "critical and determinative propositions" in the framework (at [29]): + What are the likely resultant impacts, in light of all the foregoing discussion, on the local residential area if the proposal were to be approved? + Are these impacts acceptable and should the increase in patron numbers be approved with or without a trial period? 11In that regard, he said at [36]: "The inevitability of anti - social behaviour of patrons of existing late night trading venues in the locality at the Hotel's present numbers provides no basis upon which to permit any intensification unless the present aggregated level of impact is acceptable or steps are available to be taken (and will be taken) by the Hotel to reduce existing aggregated impacts so that the resultant aggregated impact, after any approval for intensification, is acceptable overall." 12The Senior Commissioner found the following evidence to be relevant to the assessment: (a)There was some level of foot traffic from the London Hotel, at its closure, to the Hotel on Friday and Saturday nights (at [44]). (b)There were adverse amenity impacts on the neighbourhood arising from licensed premises generally (at [55]) although the Hotel is not the source of all of this activity (at [62]). (c)There was "widespread" and "regular" occurrences of antisocial behaviour of three kinds in the vicinity (at [56] - [57]); (i)rowdiness leading to sleep disturbance; (ii)smashing of glass in residential areas; and (iii)public urination and defecation. (d)Such behaviour was, in a general sense, alcohol fuelled (see [67], [74], [77], [78], [83]). (e)Although antisocial behaviour may or must inevitably result from placing licensed premises near residential areas, this did not render that behaviour reasonable in the assessment of the impacts of that behaviour (at [61], see also [96]). (f)Elements from within a broader incidence of such antisocial behaviour in this locality are attributable to patrons of the Hotel (at [82]), since the Court had the evidence of: (i)Mr Grigg having to move his bedroom from the front to the rear of his premises in Williams Street to avoid noise and rowdiness from patrons of the Hotel (at [71]); and (ii)two police reports of public urination by former patrons of the Hotel in 2009 ([79] - [81]), which were relevant despite the passage of time since then (see [82]). 13The Senior Commissioner addressed the evidence as to whether the applicant could demonstrate measures to address adverse impacts: at [85] - [88]. 14The Senior Commissioner concluded that it was sufficiently likely on the evidence that the effective doubling of patron numbers at the Hotel would lead to an increased level of antisocial behaviour by patrons of the Hotel in the vicinity (at [89] - [91]): "89 The crux of that which I am obliged to consider is whether or not I should conclude that, if I were to permit the effective doubling of the patron numbers at the Paddington Inn, this would inevitably lead to an increased level of antisocial behaviour by patrons of those premises in the locality. 90 Although I really appreciate the difficulties of suggesting that a party should be required to prove a negative, I consider that I should approach this issue on a precautionary basis. 91 The consequence of this is, whether cast as a double negative that I cannot be satisfied that it will not occur or as a positive finding that I am satisfied that it will occur, a precautionary approach, in my opinion, has me approaching the matter on the basis that it is sufficiently likely, on the evidence that I have that: rowdy, noisy street behaviour by patrons of the Paddington Inn would increase if patron numbers were permitted to increase and that this would adversely impact residents in the vicinity; and incidents of public urination, including urination on or into private residential property would increase if patron numbers were permitted to increase and that such behaviour, for the reasons discussed below, is entirely unacceptable." 15He said that public urination in or onto private residential property in the vicinity can never be regarded as acceptable or be tolerated: at [94]. 16The above reasoning led the Senior Commissioner to express his conclusions on the first issue as follows, at [97] - [105]: "97 The unacceptable antisocial behaviour is, on the uncontested evidence, of sufficient regularity and intensity, in my opinion, that any increase in this, save for some increase that might be regarded as being so trifling as to be unobservable in its impact on the residents, should not be permitted. 98 I have concluded that the present level of antisocial behaviour in the streets in the vicinity of the Paddington Inn where that behaviour comprises late - night rowdiness; vomiting; and urination and/or defecation in the street or on private property is an inevitable consequence of the existence in the immediate vicinity and somewhat more wide range of alcohol serving premises. Although the occurrence of these behaviours is an inevitable consequence of these existing permitted developments of a variety of types and it is thus, as was the opinion of Mr. Sanders [the appellant's planning expert] reasonable to expect that such behaviour would occur, the reasonableness of the expectation (indeed the inevitability) of the behaviour, does not, in any fashion, render the behaviour itself reasonable or acceptable. 99 In this instance, although the vast majority of this unacceptably impacting behaviour is not able to be and it will not be attributed by me to patrons of the Paddington Inn, there are specific and credible instances in the evidence where such unacceptable behaviour can and should be attributed to patrons of the Paddington Inn. 100 Any increase in any of the unacceptable antisocial behaviours inflicted on the residents in the vicinity, except to the extent that such increase might be trifling and imperceptible, is in itself unacceptable. If there is an obvious and foreseeable probability that the present unacceptable impact is likely to be exacerbated (beyond the imperceptible), the proper precautionary approach to take is not to permit the circumstances giving rise to that increased risk (let alone any inevitability of such increase - as is here the case). 101 In the present instance, there is no credible basis upon which I could conclude that the present demonstrated unacceptable behaviours arising from patrons of the Paddington Inn would not be increased beyond the imperceptible if the permitted numbers of persons on the premises were to be doubled or more as sought by the applicant. 102 As a consequence, it is not appropriate to approve any increase in the maximum permitted number of persons on the premises because of the probability, indeed inevitability, that there will be an increase in antisocial behaviour that is entirely outside the control of the management of the premises, no matter how well managed those premises are, on the residents in the vicinity. 103 In making this finding and in drawing this conclusion, I am expressly not making any adverse finding concerning the present management of the Paddington Inn. Indeed, the incident earlier described where a patron of the premises publicly urinated in front of uniformed police officers provides a stark example of the fact that such behaviour is not only uncontrolled by the patron but is uncontrollable by any reasonable external intervention whether by the management of the premises or by the public authorities. 104 Finally, it is clear and, indeed, also inevitable that, just as the police are presently not able to provide sufficient staffing to prevent the present levels of unacceptable amenity impact on the residents, there is not the remotest prospect that, with any increased patron numbers (if approved) for the premises, there would be able to be any increased police response to the low level antisocial neighbourhood impacting behaviours and, indeed, given the incident cited immediately above, such police presence might well be ineffectual even if it were to be available. 105 As a consequence of the conclusions I have reached concerning the specific impact and likely increase of that impact on residents that would arise if patron numbers were permitted to be increased at the Paddington Inn, it is not appropriate to approve such an increase and the appeal must therefore be dismissed."

First ground: consideration of all aspect of s 79C(1) 17The first ground of appeal is that the Senior commissioner did not consider all aspects of s 79C(1) of the EPA Act because he did not consider: - (a)The public interest in increasing the patron numbers of the Hotel, which he found to be well managed: s 79C(1)(e). (b)The suitability of the site for the proposed development: s 79C(1)(c). 18The appellant points out that the Senior Commissioner did not expressly refer to s 79C(1). I do not regard that as significant. It can safely be inferred that the Senior Commissioner squarely had s 79C(1) in his sights since it dictates mandatory considerations, if relevant, in all the numerous merits appeals from councils' decisions that are the daily fare of Commissioners. 19The first of the matters referred to at [ 17 ] above was not contended for at the hearing before the Senior Commissioner, nor in the parties' respective Notices of Facts and Contentions filed before the hearing. Consequently, the appellant cannot for the first time on appeal contend for it. Nor is it open to the appellant to submit that there was any error of law in the Senior Commissioner not addressing a matter that was not contentious before him. A Commissioner is only bound to address the "principal, central or critical issues" in contest between the parties: Segal v Waverley Council [2005] NSWCA 310, 64 NSWLR 177 at [21], [78], [92]. 20I do not accept that the Senior Commissioner did not consider the second of the matters referred to at [ 17 ] above. He clearly had regard to the suitability of the site in the opening paragraphs of his judgment when comparing the site to the more intense entertainment precinct at the western part of Oxford Street. The Senior Commissioner also reflected on the possibility that potential antisocial behaviour was an inevitable (and hence possibly reasonable) outcome of such development in the area. 21Accordingly, I reject the first ground of appeal.

Second ground: the wrong test? 22The second ground of appeal is that the Senior Commissioner erred in law in the test he applied to determine whether to permit the proposed increase in patron numbers. 23The appellant submits that the Senior Commissioner's "test" at [97] and [100] for determining whether to permit any increase in permitted patron numbers was that no increase was permitted unless any resultant increase in antisocial behaviour was "so trifling as to be unobservable" or "imperceptible". The appellant submits that was the wrong test and that, instead, he should have asked what the likely impacts would be of the proposed increase in patrons, having regard to his finding of good management. The appellant submits that: (a)The test adopted by the Senior Commissioner is not encompassed by s 79C(1). (b)The test is manifestly unreasonable since the Hotel would never be able to demonstrate that any increase in antisocial behaviour was "so trifling as to be unobservable" or "imperceptible". The appellant argues that this is so in the context of the Senior Commissioner's findings that "a consequence of the existence of licensed premises located in close proximity to residential areas" was that "there will be incidents of antisocial behaviour that are not capable of being eliminated no matter how good the management of the premises might be" (at [51]); and that it was not possible for the Hotel to "quarantine the elimination of antisocial behaviour" (at [86]). These findings, coupled with the Senior Commissioner's focus on the cumulative effect of multiple licensed premises in the vicinity would have the practical effect of removing all elements of discretion in any comparable case. The applicant submits that this cannot stand with s 79C(1), and is inconsistent with decisions of other Commissioners in Ardilo Pty Ltd v Randwick City Council [2011] NSWLEC 1242 and WWL Consulting Pty Ltd v Marrickville Council [2011] NSWLEC 1161. 24I do not accept the characterisation of the passages at [97] and [100] of the Senior Commissioner's judgment as a "test" for determining the application. Those passages appear under the heading "Conclusions on the first issue". The first issue was described as "antisocial behaviour in the vicinity of the Hotel". The Senior Commissioner concluded that some of the general antisocial behaviour should be attributed to patrons of the Hotel: at [99]. Against the background of general antisocial behaviour, he found that the introduction of anything more than a trifling or imperceptible increase in such behaviour by additional patrons would be unacceptable: at [100]. Thus, the Senior Commissioner was not adopting any particular "test" to determine the application. Rather, he was setting out his finding that an increase in patron numbers would generate perceptible further antisocial behaviour that would unreasonably impact on the amenity of neighbouring residents: at [105]. That was a direct application of the environmental assessment required by s 79C(1)(b). 25The fact that different commissioners in other cases have concluded that impacts from intensification of uses of other hotels in other circumstances were not unreasonable merely demonstrates the need for site specific environmental assessment. In Ardilo Brown C noted that it is always difficult to conclude that a specific hotel is the direct cause of antisocial behaviour, particularly in a locality where there are (among other things) a large number of licensed premises that attract patrons to the area. He was not satisfied on the facts of that case that intensification of use would necessarily contribute to antisocial behaviour around the hotel to a level that would warrant refusal of the application. In WWL Tuor C reached a similar conclusion. Both cases turned on their own facts. I see no inconsistency between those decisions and the decision of the Senior Commissioner in the present case. 26In oral submissions the appellant also submitted that the Senior Commissioner erred in not considering whether the doubling of patrons at the Hotel would reduce antisocial conduct in the area by encouraging patrons to attend the well - managed Paddington Inn, rather than nearby establishments which were, on the applicant's submission, poorly managed. I do not accept that submission either since there was no such contention before the Senior Commissioner. 27Accordingly, I reject the second ground of appeal.

GROUND 3: PROBATIVE EVIDENCE 28The third ground of appeal is that the Senior Commissioner's conclusion was not based on any probative evidence. 29Findings of fact for which there is no evidence, as opposed no findings of fact for which there is some evidence, involve an error of law. Acting without probative evidence is the equivalent of no evidence: Bruce v Cole (1998) 45 NSWLR 163 at 188 - 189: (Spigelman CJ, Sheller and Powell JJA agreeing); Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286; 156 LGERA 12 at [44] (Biscoe J); Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 at [26] (Preston CJ); Pittwater Council v Minister for Planning [2011] NSWLEC 162 (Pain J). 30This ground of appeal fastens onto: (a)The Senior Commissioner's determination that an increase in patron numbers would increase "rowdy, noisy street behaviours" by patrons which would "adversely impact residents in the vicinity": at [91] - [93]. The evidence of Mr Grigg was said to provide a basis for this conclusion. (b)The Senior Commissioner's determination that incidents of public urination, including urination on or into private residential property, would increase if patron numbers at the Hotel were permitted to increase. Two police reports from August 2009 were said to provide the basis for this conclusion. 31The appellant submits that in circumstances where: (a)The evidence of Mr Grigg and the two police reports (which themselves were the only incidents of antisocial behaviour reported by the police in approximately 5 years) were the only evidence accepted by the Senior Commissioner as being attributable to patrons of the Hotel; (b)As the Senior Commissioner noted (at [99]), the vast majority of unacceptably impacting behaviour was not attributed to patrons of the Hotel; and (c)The Senior Commissioner agreed that the Hotel was well - managed. 32The appellant submits that in order properly to reach such conclusions, probative evidence would have been needed which analysed the effect of increasing the maximum patron numbers at the Hotel on the locality in the context of the nearby licensed premises. 33The appellant's submission acknowledges that the Senior Commissioner made findings on the evidence before him that there was antisocial behaviour attributable to patrons of the Hotel. 34Before the Senior Commissioner, the council contended that there was a link between the antisocial behaviour and the Hotel. The appellant contended that the council could not prove the link. That was the context in which the Senior Commissioner came to assess the evidence of Mr Grigg and Ms O'Neill at [65], [70] - [75]. He then turned to police reports of two incidents in 2009 where police officers observed patrons of the Hotel publicly urinating in the vicinity of the Hotel. He observed that those incidents were merely "serendipitously coincidental" and "were relevant to demonstrating that it is reasonable to assume that elements, from within the broader evidence of such behaviour in this locality, can be attributed to patrons from the Paddington Inn": at [82]. 35There was also the following further evidence before the Senior Commissioner (to which he did not specifically refer) fuelling the probability that the proposed increase in patronage would increase the incidence of such antisocial behaviour: (a)a joint planning experts' report with Senior Constable Cosgrove on behalf of the NSW Police Force. The joint report notes that the Senior Constables' "objection lay in the potential for increases in measured adverse impacts which, statistically speaking, in his opinion, must occur as a result of any increase in patron capacity". The joint report notes the Senior Constables' "experience that high patron numbers is a primary factor, as well as issues related to management, that lead to a high number of incidents...Mr Sanders [the appellant's planning expert] concedes in respect of Senior Constable Cosgrove's point above that an increase in patron capacity may lead to some statistical increase measured impact". Mr Wong, the council's planner, generally agreed with the Senior Constable. (b)an unchallenged police report of a third patron of the Hotel publicly urinating late at night in Oxford Street in the locality, in full view of police and members of the public, in 2009. 36In closing oral addresses before the Senior Commissioner, counsel for the appellant acknowledged (in the context of considering antisocial events) that the Court "can readily conclude that with an increase in numbers from 300 to 700 the potential for an event to occur increases". Thus, at least the potential was not contentious. 37In my opinion, as discussed above, there was evidence before the Senior Commissioner, which in my opinion was probative, on which he could, and did, conclude that the potential would be realised. 38Finally, the appellant asks rhetorically if everything else it has put is not accepted, then how in the future can new (additional) licensed premises ever open in the area, or how can there be any intensification of the use of existing licensed premises? In my view, the answer is that a future development consent will depend on the circumstances and evidence at the time of assessment of a future development application. For example, the installation of new public urinals in Oxford Street may change the degree of unacceptability of existing antisocial behaviour. 39I reject the third ground of appeal.

ORDERS 40The orders of the Court are as follows: 1.The appeal is dismissed. 2.The appellant is to pay the respondent's costs of the appeal. 3.The exhibits may be returned. 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. Decision last updated: 25 November 2011