Arslan v Manly Council

Kevin Snell Pty Limited v Manly Council [2005] NSWLEC 193; CASES CITED: Stockland Development Pty Limited v Manly Council [2004] 136 LGERA 254; .

DATES OF HEARING: 20 September 2005 EX TEMPORE JUDGMENT DATE : 09/20/2005

APPLICANT Mr Seymour, barrister INSTRUCTED BY White Barnes LEGAL REPRESENTATIVES:

RESPONDENT Mr T Howard, barrister INSTRUCTED BY Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is the alteration of existing development consent conditions. These conditions are not reproduced as part of this decision but will be available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

JUDGMENT 1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Manly Council (the council) of Development Application 160/05 for the deletion of a number of conditions imposing restrictions on the operation of a kebab shop and fast food outlet at premises known as 102 The Corso, Manly (the site) being Lot 1 DP 39426.

2 The site has an area of ~ 156 sq m and is rectangular. It has, as one of its narrow edges, an opening of the shop to the pedestrian mall area of The Corso at Manly toward the eastern end of that pedestrian mall. There is no passage through the shop for customers.

3 The issues that arise in these proceedings are, effectively: o whether the hours of operation of the premises should be permitted to be extended beyond their present required closing time of 12 midnight; o whether the applicant should be required to employ a security guard outside the premises for some period of time on some nights during which the premises trade; and o the question of whether or not there should be a trial period for any extension of trading hours and, if so, for what period should that trial operate. Although this issue is not now pressed by the council, it is still alive because it is a matter raised both in the Statement of Issues and from the evidence of Inspector Freudenstein of the New South Wales Police Force.

4 A number of issues have fallen away from the proceedings, the first being a proposal by the council that the applicant should hire contract cleaners to clean the area of The Corso in front of the premises and be required to provide evidence of the contract in that regard. That issue has fallen away because the council now accepts that the proposal in the plan of management proffered on behalf of the applicant, for those duties to be carried out on a structured basis by the applicant and his staff is an acceptable process for dealing with that issue.

5 The second is the issue of whether there should or should not have been some form of complete or partial closure of the entranceway to the premises so that persons were required to enter the shop in order to be served, thus taking them away from congregating in front of the premises and in the pedestrian mall of The Corso. This fell away for two reasons: o First, it was obvious from the view that the proposition advanced by Mr Porter, the Court-appointed social planner, that such a restriction was desirable appeared to have arisen from an earlier offer in an early version of the draft plan of management for this to occur; and o Mr Porter had not considered the physical possibility of or possible effectiveness of seeking to enforce such a condition.

6 During the course of the view, it was obvious that the nature of the enclosing structure for the premises was one which comprised two sections of roll up flexible shuttering with lateral metal bars at intervals. These two sections were dependent upon the insertion of a central guiding rack which is removed and obviously stored at some location during the hours of trading. 7 The parties are agreed that the suggestion that the totality of the door should be closed is, in effect, a nonsense and that having the western half of the door - that is the element immediately in front of the counter - closed would be to no practical effect, therefore that proposed condition was abandoned.

8 The fundamental matter is the hours of operation. My consideration is in the context that if an applicant is given a consent by this Court or by any other consent authority, there is the presumption that that person will abide by the terms of that consent. If such a person fails to abide by the terms of that consent there are, as are on foot involving these premises, other avenues in a different Class of the Court's jurisdiction for such transgressions to be attended to.

9 Therefore, it is not appropriate for me to have regard to past conduct by an applicant as a circumstance as to whether or not the future conditions would be observed. It is, however, relevant for me to have regard to past conduct as to the extent to which I could be confident that conditions in the future, if observed, would in fact have the effect intended to be created by their observation.

10 There are three elements of evidence that are relevant to my consideration of the closing hours proposed for the premises. o The first is the written material provided both by Mr Porter, who was not required to give oral evidence in the proceedings; o The second comes from a document entitled "The Report of the Manly After Midnight Working Party"; and o The third is the oral evidence given by Detective Inspector Freudenstein.

11 Mr Porter concluded that subject to a number of mitigation matters, closure at 2am might be appropriate. He reached that conclusion for the reasons set out in his report, but in this regard he has not had the benefit of the detailed evidence given by Detective Inspector Freudenstein. 12 Second, the Manly After Midnight Working Party proposes, at p 13 of its report, a restriction on opening hours for fast food premises requiring closure no later than 1am. It does so in the following terms: "Associated with the consumption of alcohol and anti-social behaviour is the need for drinkers to have access to food. In order to meet this demand a number of fast food outlets remain open late. It is frequently the patrons of licensed premises which stay in The Corso area purchasing food at these outlets which causes public disturbance and contributes to a perception that The Corso area is perceived as an unsafe place in the early morning. Consistent with the earlier closing times for licensed premises, it is proposed to limit the opening hours of these outlets to 1am."

13 It is also noted that the working party's report is subject to the right of any of its members to issue dissenting reports if they wish to do so. Attached to the report at appendix 12 is the sole dissenting report of Ms J Morgan dated 21 February 2005. 14 I have carefully read Ms Morgan's dissenting report. Ms Morgan's dissenting report does not appear to dissent with respect to the specific item to which I have referred. It is rather what might be described as a sweeping polemic relating to the entirety of the Working Party's deliberations and report. Therefore I do not read that dissent as being a dissent with respect to the recommendation to which I have referred.

15 However, Mr Seymour, barrister for the applicant, takes me to the decision in Kevin Snell Pty Limited v Manly Council [2005] NSWLEC 193, where, at para 59, McClellan CJ held that the Working Party's report had not yet found its way into a formally adopted and prescriptive policy or planning document activated by resolution of the council. 16 Mr Howard, barrister for the council, has quite properly conceded that the document is still on public display and does not cease to be so exhibited until the end of this month. I am therefore satisfied that I ought not give significant weight to it in these proceedings.

17 This is consistent with the approach taken by McClellan CJ in Stockland Development Pty Limited v Manly Council [2004] 136 LGERA 254 as, although there has been an extensive consultation process evident from the face of the document, it has not yet been entirely adopted and put under the imprimatur of the council. 18 I am therefore satisfied that, both from Mr Porter's report and from the council's Working Party, I am not decisively taken to the proposition that 1 am is an appropriate cessation time for trading. However, the evidence of Inspector Freudenstein is more compelling in this regard.

19 The evidence of Detective Inspector Freudenstein relevant to this issue is this. First, the particular nights that are a problem to the police are, in the first instance, predominantly Saturday night when the six police that are on beat duty in the precinct of Manly containing The Corso are often detained dealing with assaults and, to a lesser extent, on Friday nights. To that extent his evidence detracts significantly from the proposed condition 7 in the council's original without prejudice conditions of consent which would have required the employment of a security guard seven nights a week.

20 Mr Howard has properly resiled from that position in the light of the Detective Inspector's evidence and now proposes that a security guard be employed only on Friday and Saturday nights - only commencing at 11pm until whatever might be the appropriate closing time for the premises. 21 Without at this point determining the merits of having a security guard, I am satisfied that that is an appropriate concession with respect to the hours and nights upon which it would be appropriate to have such a presence.

22 Detective Inspector Freudenstein's evidence was that approximately 65% of all assaults in the vicinity occurred on Saturday nights and that the ratio of assaults occasioning incidents in the eastern half of The Corso (which is the pedestrian area), compared to the western half (which is vehicle accessed), is that approximately 75% of the assaults occur in the portion of The Corso within which the premises are located. 23 It was his evidence that an integrated approach to dealing with these issues was appropriate but that, as he said, You have to start somewhere. 24 He has indicated that there were two significant causes, in his view, of these assaults. One was the absence of transport being readily available to disperse patrons from The Corso after they exited from licensed premises in degrees of alcohol affected states, and the second was the presence of fast food outlets which provided focal points for congregation of such persons.

25 I have in evidence an analysis of the late trading fast food premises that are in operation in Manly. There are relevantly, in my view, seven such premises noted as being to the east of Darley Street - it being the dividing point between the pedestrian and vehicle sections of The Corso. 26 Two of those premises (including one effectively immediately to the west of the site) trade without restriction. The others have varying restrictions (whether or not they are, in fact, observed).

27 Critical to my consideration of this issue are two pieces of evidence given by Detective Inspector Freudenstein. 28 First, that it is his professional assessment that if persons exiting licensed premises and affected by alcohol are moved straight out without having any place to act as a focus, there are likely to be fewer assaults. 29 Second, that the police are seeking to enter into arrangements voluntarily with the licensees of licensed premises that there would be a restricted entry arrangement after 2am in the morning - that effectively providing a breaking point in what has been described as the first wave of departures with a second wave of departures taking place at the time of closure of those premises some hours later. It was his strongly put opinion that it was desirable that the fast food outlets not be trading at the time when that first wave of persons exited from licensed premises.

30 Contrary to that, it is put by Mr Seymour that there may be some advantage in having persons being able to access food in order to have the beneficial absorptive effect of food in the stomach removing alcohol from the bloodstream. Mr Porter makes a similar comment.

31 I am satisfied that, overall, the starting point for determining what should be the appropriate cessation of trading is the desirability of that first wave of departures from licensed premises not having access to a focus through a fast food outlet that might cause elements of disruption in the future. I am satisfied that that means 2 o'clock would be an inappropriate time to permit trading for the premises.

32 Detective Inspector Freudenstein said that, perhaps, 1am would be acceptable. 33 I am satisfied, provided the premises are locked down sufficiently in advance of 2am for them not to act as an attraction, that a later trading than midnight would be acceptable. 34 The council has indicated that it is prepared to accept trading until 1am without trial period or further restriction. 35 I am not satisfied that that is appropriate without a further trial period to establish whether the matters that are proposed in the plan of management, which is a plan with some defects to which I will return shortly, will have the necessary beneficial effects. Nor, however, am I satisfied that 1am is the appropriate time.

36 I am satisfied that a closure with the premises locked down by 1.30am provides a sufficient temporal buffer between that closure and 2am, being the first wave of departure from licensed premises, to have the general aspirations of the New South Wales police likely to be met. However, it is because it is only likely to be met that I am satisfied that there should be a trial period to ensure that that is in fact the case.

37 It was Detective Inspector Freudenstein's evidence that the appropriate peak trading period was the summer months and that that was the likely period when there would be the most aggravation and disruption. I am therefore satisfied that the trial period should conclude after the conclusion of summer and that 31 March 2006 would be an appropriate date for the conclusion of the trial period.

38 The remaining matter prior to dealing with the matters of detail in the plan of management is the question of the hiring of a security guard. 39 I am satisfied that one of the considerable elements of deterrence that arise in the context of anti-social alcohol induced behaviour in or in the vicinity of licensed premises, that being the sort of behaviour with which we are dealing here (even though focused on a fast food shop), is the presence of distinctly marked (usually by fluorescent jacketing) security guards and their dedicated presence for that purpose.

40 I am not satisfied that it would be in any way appropriate for the proprietor of the premises - even if in fact he holds a security licence (as I note in some of the documentation he has asserted to the New South Wales police force) - to perform that task. 41 I am satisfied that an appropriately licensed externally hired security contractor should provide a security guard from 11pm until fifteen minutes after the lockdown of the premises on Friday and Saturday evenings. That is, on the maximum allowable trading period, from 11pm until 1.45am. However, should the applicant not elect to trade until the latest time permitted, the guard is required to be on duty until fifteen minutes after the actual cessation of trading. 42 I am satisfied that the cleansing arrangements proposed by the applicant and now accepted by the council are appropriate.

43 There are however, a number of matters arising from the plan of management which I do not expect to be controversial but which I propose to attend to in terms of this decision.

44 The plan of management should provide (as well as separately in the conditions of consent) that every employee of the premises shall be provided with a copy of the plan of management and shall be required to be familiar with it. 45 A similar provision should apply to any security guard employed at the premises. 46 The conditions proposed that the contract for the security guard should be made available to the council and I am satisfied that that would be appropriate.

47 The plan of management should provide that the security guard shall be wearing a fluorescent crossed jacket marked "Security" and that at all times should be displaying his or her licence. 48 The patrolling area of the security guard should be to the west of the site up to but not beyond the commencement of the entrance to the other kebab premises immediately to the west - that is at the Bayside Kebab premises. It would be, in my view, unreasonable that those premises should get any borrowed security, as it were, from the endeavours of the applicant. That distance is some two shop widths (including the site). There should be a patrolling distance approximately equal to that to the east, that defining the radii of a semicircle into The Corso. That whole semicircle is appropriate to be patrolled by this guard. Essentially, the duties of the security guard should be focused on the premises and their immediate vicinity.

49 I made comment to the legal representatives of the parties at the commencement of the proceedings that I considered that the second sentence of the second dot point under "ejection of patrons" on p 4 of the plan of management was inappropriate and should be deleted, and that the entirety of the fourth dot point under that heading should also be deleted.

50 With respect to the two security cameras that are presently operated by the applicant, I am satisfied that the plan of management should require that they record, either digitally or on tape, what is happening during their hours of operation, and that those images should be stored for a period of seven days and be available for inspection by the police or by the council during the hours of trading of the premises. It is unreasonable, in terms of the gathering and storage of data, to require that data gathering to take place during what might be described as ordinary daylight trading hours. However, the minimum desirable hours for such image storing would be the four hours prior to the cessation of trading on any evening until the time that the shutters actually go down.

51 There should be defined by the parties in the plan of management where those cameras are to be trained. Indeed, contrary to Mr Porter's evidence concerning the shutters at the front of the premises, having both elements of the door up provides a wider field of surveillance for those cameras and therefore a greater utility in the public benefit for what is captured in image by them.

52 There may well be other matters arising out of the plan of management and details of the security plan that require settlement between the parties. However, I am satisfied that to the extent that I have outlined the appeal should be upheld subject to the various elements that I have dealt with.

53 The appeal is therefore upheld and orders will be issued when the parties have settled the terms of the conditions to give effect to this decision. 54 I therefore propose to set the matter down for callover sufficiently far from now for the parties to settle the conditions and a revised plan of management to give effect to this decision. It would seem to me that a lengthy period of time ought not be required for that purposes. Subject to anything that the parties might say, I therefore propose to set the matter down for callover on 29 September, subject to two directions. 1. First, if revised conditions and a revised plan of management are settled between the parties and filed electronically in conformance with Practice Direction 2 of 2005, I will make orders in chambers and vacate the callover; and 2. Second, in event that any matters which I have enunciated are insufficiently clear to the parties or they are not able to reach agreement on how they are to be effected, liberty is given to relist the matter before me at 9am on two days notice for that purpose.

55 The exhibits, other than exhibit A, may be returned.

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