Bales Investments Pty Ltd and Ors v Cessnock City Council

Land and Environment Court (NSW)|2009-03-12

CITATION : Bales Investments Pty Ltd and Ors v Cessnock City Council [2009] NSWLEC 1102 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Bales Investments Pty Ltd, Jason Fenton and Vicki Fenton PARTIES : RESPONDENT Cessnock City Council

KEY ISSUES: MODIFICATION APPLICATION :- hotel trading hours, objectives of commercial zone, neighbourhood amenity, social impact.

Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 CASES CITED: Vinson v Randwick Council [2005] NSWLEC 142 Legman Pty Limited v Council of the City of Sydney [2005] NSWLEC 640 Dayho v Rockdale City Council [2004] NSWLEC 184

DATES OF HEARING: 16, 17 February and 12 March 2009

APPLICANT Mr C. Ireland, barrister Instructed by O'Sullivan Saddington LEGAL REPRESENTATIVES:

RESPONDENT Mr T. Howard, barrister Instructed by Mallik Rees

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11080 of 2008 Bales Investments Pty Ltd, Jason Fenton and Vicki Fenton v Cessnock City Council

JUDGMENT Introduction 1 The Wentworth Hotel is located at 36 Vincent Street Cessnock at the northern end of the Vincent Street commercial area and caters for residents, workers and tourists. Access to the hotel's car park at the rear is off Cumberland Street. The hotel is situated amidst various commercial and retail land uses with the nearest residences situated some 60 m to the east in Cumberland Street.

2 Vincent Street is Cessnock's "main street". There are a number of other licenced premises within a short distance of the Wentworth Hotel - four hotels and three clubs. All but one of these premises is permitted to remain open beyond midnight. The Cessnock Hotel near the intersection of Vincent Street is able to trade until 3am. There are other restaurants and cafes nearby.

3 The Wentworth Hotel has been trading continuously since 1924 and has continuing use rights under s 109 of the Environmental Planning and Assessment Act 1979.

4 On 13 November 2006 the Cessnock City Council granted development consent (DA 8/2006/533/1) for the extension of the hotel's trading hours until 3 a.m. on Friday and Saturday nights. The consent was subject to a number of conditions relevantly including condition 2 that limited the consent to a six-month trial period only and if the applicant seeks to extend this period a modification application under s 96 of the EPA Act would be required. Modification application 5 An application under section 96 (1a) of the EPA Act has now been lodged to allow the hotel to continue to trade until 3 a.m. on Friday and Saturday nights on a permanent basis. The applicant has now appealed against the deemed refusal of this application.

6 The applicant does not seek to otherwise modify the consent but would accept a consequential updating of the currently applicable security management plan. Planning controls 7 The site is zoned 3(a) General Business Zone under the Cessnock Local Environmental Plan 1989 in which zone hotels are permissible with development consent. The objectives of the 3(a) zone include the encouragement of retail commercial and tourist development. Clause 27 of the LEP provides that consent shall not be granted unless, inter alia, development is designed and arranged so as to achieve an effective relationship with adjoining development. Also, development is to contribute to an overall improvement to the character and functioning of the centre. Advertising 8 The application was notified and three submissions were received including an objection from the NSW Police Service-Licensing Section, Maitland. The other two submissions were from the owners of residential properties in nearby Cooper Street (Mr W Barrett) and Yengo Street (Mrs B Brown). NSW Police Service objection 9 The NSW Police Service objects to the proposed extended trading hours on the basis of: (a) A statistical increase in the level of incidents reported attributable to the extension of trading hours that the hotel. (b) An increase in the demand placed on police resources in attending to incidents. (c) The trial period has confirmed the original objection to the granting of extended trading hours on a trial basis. Council's decision and contentions 10 Following its consideration of a council officer's report (Mr R Forbes) recommending refusal, the council refused the application for reasons that are essentially reflected in the Statement of Facts and Contentions. In essence those contentions comprise: o Whether the development as proposed is substantially the same development for which consent was originally granted. o Whether the proposed extended trading hours would be inconsistent with the objectives of the 3(a) zone (clauses 9, 27 and Schedule 1 of the LEP). o Whether the proposed extended trading hours would adversely affect the amenity of the area and the quiet and good order of the neighbourhood. o Whether the information supplied with the application adequately addresses the likely social impacts of the proposed extended trading hours. o Whether the proposed extended trading hours would be satisfactory taking into account the availability of public transport for hotel patrons. 11 The issue of whether the development is substantially the same development as that for which consent was originally granted was not pressed at the hearing. The remaining issues, in essence, are as follows: o Whether the amenity of the surrounding commercial and residential areas would be adversely affected by virtue of the behaviour of hotel patrons in those areas during and beyond the proposed trading hours. o Whether the extended trading hours would encourage other retail commercial and tourist development in the locality. Expert evidence 12 On behalf of the respondent Council expert evidence was given by: o Mr R Forbes - town planner o Sgt B Myers - NSW Police. 13 On behalf of the applicant expert evidence was given by: o Mr G. Smith - town planner o Mr G. Askew - security consultant The joint report 14 In addition to their expert reports Mr Forbes, Mr Askew and Mr Smith prepared a joint report. In that report they agreed on a number of matters including: o Cessnock has social problems including underage drinking, vandalism and antisocial behaviour that occur in various public places often at night. o The assessment of social problems in public places late at night relies on information provided by the NSW police service. o The hotel is one of only two hotels in Cessnock that trades until 3 a.m. on Friday and Saturday nights although the nearby RSL club can trade after midnight. o The Wentworth Hotel is the only licenced premises in Cessnock required to comply with a security management plan. o The 2007 security management plan is an improvement over the 2006 security management plan. The now proposed security management plan is an improvement over the 2007 security management plan. o Concurrently with the implementation of the 2008 security management plan there has been an improvement in the quality of security management at the hotel. o The process of educating staff and security personnel as to the requirements of a security management plan takes time. o A security management plan for a single hotel can only at most marginally ameliorate existing antisocial problems. Instead a holistic approach involving all licensees and the police service would be necessary. o It would be desirable for the licensee to hold regular meetings with the police service and the council to identify problems suggest countermeasures and if necessary varied the security management plan. o There is a demand for extended trading hours. o The hotel contributes to tourism in the area. 15 Mr Forbes nevertheless disagreed with Mr Askew and Mr Smith in relation to a number of matters. 16 Mr Forbes explained that he had relied on the reports of the police and the hotel's incident books to conclude that the hotel was the source of problems in the area. Regardless of management, trading after midnight would not benefit the social environment. Mr Smith and Mr Askew disagreed, contending that the police data did not establish that the hotel was a significant source of problems during the midnight to 3 a.m. trial period. Also there is an absence of complaints and only two objections to the subject application and that these objections did not necessarily implicate the hotel, instead reflecting conditions in the broader context.

17 Mr Smith explained that the applicant is being proactive in introducing measures to benefit the environment. Such measures are based on industry experience and include the security management plan, the midnight curfew/lock-out and the minibus service. He also noted the applicant's willingness to cooperate with the police and the council to further develop the security management plan. Mr Askew agreed with Mr Smith but noted that the suite of measures would take some time to become fully effective and that the effectiveness of the minibus service needed to be improved. 18 Mr Forbes was concerned that late-night trading caused an increase in the number of alcohol-affected persons in the street and this would adversely affect pedestrian amenity. Mr Smith disagreed explaining that there were few pedestrians in Vincent Street after midnights that were not associated with this and other licenced premises in the locality. Also the street's amenity would be reasonably protected by the hotel's security facilities including closed circuit cameras and patrolling security guards.

19 Mr Forbes was of the opinion that the hotel is inappropriately located for late-night trading but Mr Smith disagreed simply because it is in a business zone.

20 Mr Forbes, Mr Smith and Mr Askew agreed that there should be random monitoring of the hotel's compliance with the conditions and the security management plan. NSW Police evidence 21 According to Sgt Myers the police oppose the continuation of late-night trading in the Wentworth Hotel because of the increase in the number of incidents requiring police attendance. The NSW police Service' COPS database shows a significant increase in incidents associated with the hotel as compared with the period prior to that trading commencing. (Such association is established when a person of interest informs the police that they had their last and most recent drink at the hotel). It also shows that during the trial period there were numerous antisocial incidents including assaults of a serious nature linked to the hotel. Resident objector evidence 22 The resident objectors oppose the proposed trading hours essentially because: o Hotel patrons enter into nearby streets in an extremely intoxicated state and behave antisocially. o There have been violent altercations outside homes and in the general area. o Hotel patrons have been involved in acts of vandalism in nearby streets. o These antisocial activities place unreasonable demands on police officers. o Hotel security is ineffective. Submissions 23 In his submissions on behalf of the respondent, Mr Howard said that the council's case is that: Having regard to the incidents of violent an antisocial behaviour associated with this extended late-night trading over the trial period, the continuing operation of the Wentworth Hotel over the extended late night hours on Friday and Saturday nights (from midnight until 3 a.m.) will have an unacceptable impact on the amenity and good order of the neighbourhood and the granting of consent would not be in the public interest. 24 In this context he invited the Court to apply the planning principles in Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 and Vinson v Randwick Council [2005] NSWLEC 142. In Randall, Tuor C identifies principles that could be applied when assessing an application for an extension or intensification of a use such as a hotel, which may have an adverse impact on residential amenity. If an extension or intensification is to occur and if there are unacceptable increased impacts these should be mitigated by appropriate measures. In Vinson, Moore C by reference to Randall identifies tests that can be applied in assessing such applications. These tests include identification of and measures to address adverse impacts.

25 Mr Howard suggests that in order to deal with these questions the Court should take into account the expert evidence, the applicant's proposed future measures to ameliorate the impacts and the trial period that began in November 2007 and relevantly continued until mid February 2009. He also suggests that the relevant impacts are the impacts on the amenity and good order of the neighbourhood occasioned by antisocial, violent and at times criminal behaviour associated with the extended late-night trading of the hotel. The relevant neighbourhood includes not only nearby residential areas but also the town centre.

26 There is a considerable body of evidence of incidents that have occurred in and in the vicinity of the Wentworth Hotel that are associated with its operation during the extended trading hours. That evidence falls into three groupings: the (above-mentioned) evidence of the residents, the evidence Sgt Myers and the hotel's incident register. He submits that this evidence was relevant and should be given significant weight when applying the above-mentioned principles, especially as it was more reliable than generalised anecdotal evidence. Moreover the police data is corroborated to a significant degree by the records contained in the hotel's incident register that records numerous incidences of violent and antisocial behaviour associated with the operation of the hotel over the trial period, this behaviour occurring in and in the nearby vicinity. There is no evidence to suggest that these incidents are not linked to the operation of the hotel.

27 Mr Howard submitted that I could accept that on the basis of this evidence that from midnight to 3 a.m. on Friday and Saturday nights there are frequent occurrences of behaviour involving fights, assaults and other antisocial behaviour linked to the Wentworth Hotel. Such occurrences happened both within the hotel and in the public domain. Hence the impact of late-night trading on the amenity of the neighbourhood is unacceptable. Whilst the applicant proposes a number of changes to the hotel's security management plan based on Mr Askew's recommendations, he submitted that this should not be accepted as a basis for extending the trading hours. This is because throughout the trial period there was a security management plan in operation but this did not avoid significant impacts on neighbourhood amenity.

28 Mr Howard finally submitted that the Court should not place any real weight on assurances that the security management plan would be complied with to mitigate the adverse impacts associated with this hotel and the appeal should be dismissed. However, should the Court decide to grant the application this should be for a period of 12 months during which time there should be an auditing regime to be carried out under the auspices of the council.

29 In his submissions on behalf of the applicant Mr Ireland said that the previous two years of extended trading has demonstrated compliance with the conditions of consent. He pointed out that, based on the evidence of Mr Askew and Mr Smith an improved security management plan should form part of the development consent that in turn, as a condition of consent is required to be complied with. It can be anticipated that the security management plan will be complied with and as a consequence there will be no unreasonable impact on the amenity of the nearby residential area or on the existing commercial character of the area. He also submitted that the concerns of the resident objectors who live some distance from the hotel are mainly about general antisocial behaviour in the area that they could not directly attribute to the Wentworth Hotel or its patrons. Also, should the Wentworth Hotel be required to revert to closing at midnight former patrons would simply relocate to the Cessnock Hotel that is open until 3 a.m. without a curfew. 30 Mr Ireland also stressed the need to be careful about the weight given to the police evidence involving so-called related incidents or alcohol linked data where interviewed persons acknowledged that their last drink was at this hotel. For at least some of this data, the linkage between the hotel and the incidents need to be questioned. Also, increases in the number of incidents could be attributed to a significant increase in inspections by the police of the premises rather than an increase in the actual number of incidents. Also an incident might be attributed to the Wentworth Hotel when the offender had been supplied elsewhere with alcohol. He also extended this approach to other associated data citing: incidents that occurred before midnight; an attack by persons unknown on a hotel patron some distance away; and the appropriate refusal of entry by security staff.

31 In all of the circumstances Mr Ireland submitted that the modification application should be approved subject to the applicant's proposed conditions including the deletion of the reference to a trial period. Conclusions 32 Based on police data and the hotel's incident register it is clear that from time to time incidents of antisocial behaviour including fighting have occurred inside the Wentworth Hotel. These incidents are usually dealt with by hotel security or the police and do not necessarily demonstrate adverse impacts beyond the site.

33 It is also clear, based on linked police data, that late night antisocial behaviour including fighting and damage to property occurs in the Cessnock town centre generally and that this is an ongoing problem. Up to a point the two resident objectors confirm this, although if the behaviour of hotel patrons were of such widespread concern I would have expected that there would have been a large number of objections to this proposal. But this does not mean that antisocial behaviour in the locality is not a problem and I accept that instances of inappropriate behaviour occur in the environs of the Wentworth Hotel and the Cessnock Hotel and other nearby late opening licenced premises.

34 In relation to such instances I agree with Mr Ireland that care needs to be taken in attributing all such inappropriate behaviour to the Wentworth Hotel just because it occurs in the relevant vicinity. In this regard the accuracy of such data can be questioned for example on the basis that persons being questioned may not be truthful or, being affected by alcohol, may answer the question ("where did you have your last drink?") incorrectly.

35 Similarly, care needs to be taken if utilising this data, to ensure that there is a causal link between the service of alcohol at the Wentworth Hotel and the incident of concern to the police. In Legman Pty Limited v Council of the City of Sydney [2005] NSWLEC 640 Moore C found such material to be of no assistance because an appropriate comparison could not be made between the causation of the incident and the specific premises. I do not however believe that such a strict approach is required because I accept the likelihood that at least some of the antisocial behaviour that occurred during the trial period in the vicinity of the Wentworth Hotel can be attributed to it. Hence, this evidence can be considered, but it should not by itself, be wholly relied on. The questions that thus arise are whether the impacts associated with any attributable behaviour are sufficient to refuse the modification application or whether any unacceptable impacts can be mitigated with appropriate measures.

36 In Vinson, Moore C took a precautionary approach as a consequence of his lack of confidence in the outcomes of the present security management regime and the hotel's unsatisfactory past performance. In this case, taking into account the incidents that have occurred within the hotel and the nearby incidents that could reasonably be attributed to it, a precautionary approach is also warranted. It is also evident that during the trial period there have been instances when the security management plan has not been complied with. These matters weigh against approval of the application.

37 In my opinion it is not necessary for the applicant to persuade the court that all antisocial behaviour will be avoided. Instead the hotel needs to provide an appropriate hotel environment and an appropriate, continuing management regime so that such behaviour is minimised.

38 Having taken into account Mr Askew's evidence as to the deficiencies in the Wentworth Hotel's security management regime, the applicant now proposes a number of changes that can be incorporated as conditions of consent. These include a designated responsible service of alcohol monitor, revised security guard patrols in Vincent Street, and improved courtesy bus arrangements and random compliance audits that according to Mr Askew represent an improvement on the previous security management plan.

39 Enforceable conditions of consent (including the security management plan) that apply to the hotel, irrespective of who manages the hotel and who is the licensee, are of considerable importance and I accept that what is now proposed comprises an appropriate enforceable management regime.

40 Compliance by hotel management with the conditions of consent so as to minimise antisocial behaviour, isolate and promptly deal with incidents is clearly critical in ensuring that the amenity of surrounding areas is protected. On this basis I believe it to be imperative that periodic independent reports documenting compliance with the security management plan, including covert surveillance as recommended by Mr Askew should be provided. So too should there be a regular constructive contact with the Cessnock police.

41 In Dayho v Rockdale City Council [2004] NSWLEC 184 Roseth SC said that where conditions of consent relate to the operation of a use, and it is proposed to monitor compliance with those conditions, it is preferable for the council to appoint the persons responsible for the monitoring and to choose the time at which the monitoring is to be carried out. I agree with the council that a condition to this effect should be imposed. Whilst this applicant's behaviour in complying with conditions of consent has not been perfect, I accept that compliance is more likely to be achieved taking into account this condition. 42 In all of the circumstances I am satisfied that, properly managed in accordance with conditions of consent that include the security management plan, the Wentworth Hotel could operate satisfactorily until 3 a.m. on Friday and Saturday nights without having an unacceptable impact on the amenity of surrounding areas and would not infringe the objectives of the 3(a) zone. It should be recognized that the hotel is in the retail and commercial district removed from residential areas and I accept that for the most part passers-by will be unaffected. Whilst altercations may still occur I believe that compliance with the conditions of consent should ensure that there is no fundamental incompatibility with the neighbourhood.

43 However giving some weight to the legitimate concerns of the police and the council and taking into account the proposed changes to the management regime as reflected in the proffered conditions and the security management plan I have decided that it would be appropriate to uphold the appeal and modify the consent subject to a further trial period as suggested by the council. The trial period will give the applicant an opportunity to show that the revised management regime is effective and that late-night trading will not have an unacceptable impact on the amenity and good order of the neighbourhood.

44 I have reviewed the conditions sought to be imposed by the respondent should I uphold the appeal but I have decided that the applicant's conditions essentially comprise an appropriate response to the conclusions that I have reached. I have nevertheless, taking into account the evidence, decided that a number of changes are required including a trial period. Orders 45 For the above reasons I have decided that: 1. The appeal is upheld. 2. The development consent for the Wentworth Hotel is modified by: (1) The deletion of Condition No. 2 and its replacement with the following: 2. The hotel is permitted by this consent to trade between midnight and 3 a.m. on Friday and Saturday nights only. These trading hours are limited to a twelve (12) month trial period from 7 April 2009. Any proposal to trade between midnight and 3 a.m. after 7 April 2010, may not occur without further of approval. (2) The deletion of Condition No. 3 and its replacement with the following: 3. The development shall be undertaken strictly in accordance with the details set out in the application form, including the modified 2008 security management plan and accompanying documents dated 31 July 2008 as modified by these conditions and: (a). Compliance audits shall be carried out at random at the applicant's cost by a firm retained by the applicant (whose appointment is approved by council), but not more than quarterly unless non-compliance is found by the council, in which case, more frequent auditing may be required. The audits must include covert surveillance of the hotel to ascertain whether there is compliance with this consent. (b). A copy of the audit results shall be provided by the council to the licensee of the hotel. (3) The deletion of Condition No. 5 and its replacement with the following: 5. The applicant shall provide patrons with a shuttle bus service between midnight and one hour after close of trade on days where trading is extended beyond 12 midnight for the duration of the 12 month trial period and that: (a) The service shall be provided to patrons free of charge. (b) No bona-fide patron of the hotel shall be refused travel on the shuttle bus unless the patron is considered by the driver of the shuttle bus to be violent or is considered to be a danger to others. (c) Signs advising patrons of the shuttle bus service will be displayed in the hotel. (d) Marshalling of patrons for the courtesy bus shall occur within the hotel. (4) The deletion of Condition No. 6 and its replacement with the following: 6. The applicant shall implement the security management plan dated December 2008 prepared by ComplianceWise. (5) The deletion of Condition No. 8 and its replacement with the following: 8. Lighting of the car park area shall be upgraded and maintained by the provision of a minimum of two security floodlights in accordance with the security management plan dated December 2008 prepared by ComplianceWise. (6) The deletion of Condition No. 11 and its replacement with the following: 11. Subject to Condition No. 2 the trading hours of the hotel are: Mondays to Saturdays: - 10 a.m. to 12 midnight Sundays: 12 midday to 10 p.m. (7) The deletion of Condition 14 and its replacement with the following: 14. The applicant shall install closed circuit security cameras at the front and rear of the premises in consultation with the council and the NSW Police. DVD recordings from these closed circuit television cameras shall be retained for 30 days after recording. (8) The following two new conditions are added to the consent: 15. The licensee shall provide to the council every three (3) months a copy of the Incident Log Book required to be kept by the hotel under the Liquor Act 2007. 16. The licensee shall arrange (without charge) for taxi cabs to collect any patron from the hotel upon receipt of a request from the patron to do so. 3. The exhibits are returned.

      T A Bly
      Commissioner of the Court
      ljr

05/06/2009 - Citation amended - Paragraph(s) coversheet

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