Large overnight events
41The applicants seek consent for up to 4 events per annum for up to 900 people between the hours of 5.00pm and 6.00am.
42The Council submits that there is insufficient information to assess properly the proposed four overnight events, and that the earlier assessments should not be relied upon because they lacked proper rigour and analysis based on crime prevention principles.
43The applicants submit that they have shown they are responsible operators who can manage such events without complaint and there is sufficient information for the Court to have confidence that a continuation of the opportunity to conduct overnight events by way of the grant of consent in a manner that is consistent with earlier consents will not give rise to adverse impacts.
44Mr Lonergan's evidence was that up to four events permitted to extend to 6.30am the following morning was a reasonable request, given the nonresidential nature of the area, the fact that the capacity and its associated impacts were still limited to 900 persons, and the fact that events would still finish before the commencement of other landuse activities in the industrial estate thus avoiding conflict particularly in relation to traffic and parking. Mr Soulsby did not agree. In his opinion, Mr Lonergan was correct in that there would be minimal additional traffic and parking impacts caused by the extension of the hours of operation, however traffic and parking impacts were not the reason for his disagreement. No social impact report had been prepared, no crime prevention assessment had been prepared, and the matter was not referred to the NSW Police for their input. In Mr Soulsby's opinion there is inadequate information about the potential impacts to enable a proper assessment, and insufficient information available to determine whether having the venue open for 23 and a half hours in a 24 hour period would not have a detrimental social or crime related impacts.
45In oral evidence Mr Soulsby stated that the assessment undertaken of then proposed large overnight events for the 2009 Consent was insufficient. The report did not indicate that the assessment was compliant with CPTED guidelines which required that the application be referred to NSW Police, and it did not indicate that the officer had any training to undertake the assessment. Mr Soulsby acknowledged that BEC is not located in the Byron Bay Town Centre, where the venues involved in the Byron Bay Liquor Accord (exhibit C) are located. However, he was of the opinion that BEC will attract patrons who have left licensed premises. The area is poorly lit and has a lack of passive surveillance, and so the premises could potentially attract intoxicated persons, and he is concerned about the lighting. He agreed that the venue is not the same as live venues in town, however there is insufficient evidence for him to assess the potential impacts. Mr Soulsby stated that the level of risk increases with the level of intoxication, and it is a risky environment. Condition 10 requiring additional lighting would address concerns about patrons leaving safely, however it is still not a safe environment.
46Mr Lonergan's evidence was that BEC is a destination venue, spatially removed from other late night venues. He was not aware of any other licensed venues trading until 6am. In his opinion this venue is different, its general character is low key with occasional weekend events and very occasionally an event that goes on until the early hours, and people will go there and stay there. Generally after 5pm the industrial estate is deserted and so there is no increased amenity impact if it goes until 6am because there is no conflict with other land uses, and it is not adjacent to a residential area. Mr Lonergan agreed that there would be a concern if people went there from other venues in the Byron Town Centre, and that could be managed with an adequate Management Plan and adequate lighting. Mr Lonergan referred to his experience living in the area for 30 years and being a musician, and stated that he had had the opportunity to attend larger events through the existing consent, most recently being an event of up to 400 people about six months ago, until 11pm.
47In considering whether the application to allow up to 4 overnight events for up to 900 people should be approved, I accept the evidence of Mr Lonergan and Mr Soulsby that the extension to 6.30am would result in minimal adverse traffic and parking impacts. The Weekly Vehicle Counts for Bayshore Drive annexed to the planners' Joint Report indicate that during weekdays there is minimal vehicle movement before 6.00am, with movements increasing over the period from 6.00am to 10.00-11.00am, with the weekend peak being between 11.00am to 1.00pm.
48In considering the proposed commencing time, the planners agreed that a 6.00pm commencement time for large evening events would coincide with the reduction of traffic volumes as evidenced in Council traffic counts. The Weekly Vehicle Counts indicate weekday traffic peaks between 3.00pm to 4.00pm and 4.00pm to 5.00pm, depending on the day, and between 11.00am to 1.00pm on weekends. Mr Samuels' evidence (exhibit 7, p 3) was that large evening events should not commence before 6.30pm, based on Council Traffic Count data that confirmed that hourly traffic volumes remain consistently high throughout the day particular through the afternoon and consistently drops off in the hour after 6.00pm.
49If the large overnight events are otherwise appropriate to be approved, I am satisfied, based on the planners' evidence, the traffic counts, and the agreed position as to place of assembly large evening events, that they should not be permitted to commence before 6.00pm Monday to Friday. While I note that Mr Samuels adopted a more cautious approach, I am satisfied that the start time of 6.00pm as agreed between the planners is supported by the traffic count data provided in exhibit 6.
50Consideration of other potential impacts must be undertaken by reference to the evidence available to the Court, and not simply by reference to there having been previous Council approvals. Evidence as to any adverse impacts of previous large events would be relevant in that consideration.
51The 2005 Consent approved, on a two year trial basis, up to 8 occasional special events from 7.00pm to 6.30am for a maximum of 1100 people. The 2009 Consent approved 4 large overnight events for up to 900 people, however it was noted in the assessment of DA 10.2012.583.1 (exhibit 3, tab 28) in December 2012, that because BEC is operating under the 2005 Consent and not the 2009 Consent which would require an occupation certificate, there was then currently no approval for large events.
52There is some evidence as to the previous operation for large overnight events, in an emailed response on 25 February 2013 by the applicants to a question from Council, providing information based on the condition of the 2005 Consent which required the applicants to notify Council of all events anticipated to exceed 330 people. That response (exhibit 3, pp 349-350) identified 11 events between May 2006 to November 2007, five of which are described as "all-night dance party" (19 August 2006, 16 September 2006, 4 November 2006, 2 December 2006, 31 December 2006); two of these events had 650 and 850 tickets sold, while for the other events attendance is not on record. The response identifies two Xavier Rudd concerts (2 November 2007, 3 November 2007) with 950 and 750 tickets sold; the times are not provided. As previously noted, the Report provided for the s 82A review for DA10.2007.415.1 identified one of two complaints relating to 19/20 August 2006, which would be consistent with the information provided in the email of 25 February 2013.
53There is some evidence as to noise and other impacts from evening operations at BEC, primarily in the assessment of the development application DA 10.2007.415.1, where the Council's Environmental Health Officer had noted attending "a number of Saturday night events at the centre and monitored the sound levels, particularly after midnight" (exhibit 3, p151). Details of that officer's comments are in paragraph [53] above. The Report provided for the s 82A review in relation to that development application concluded, in relation to noise, that the trial events were operating in accordance with Council's requirements. Mr Soulsby raised concerns about the assessment undertaken in that report in relation to crime prevention. I agree that that part of the assessment does not expressly state how the assessment complied with CPTED guidelines. However, the author's concluding statement that "the operation of the venue has been occurring without known crime incidents" was not challenged. The assessment undertaken for the 2011 Modification did not identify, or discuss, any adverse impacts other than raising concern about traffic and parking, particularly in relation to the large daytime events (exhibit 3, tab 22). The Council responded to a Notice to Produce for Inspection dated 16 July 2013 requiring production of any document recording a comment or complaint made by a member of the public, or recording observations of a member of Council staff or contractor, with respect to the operation of the BEC, by providing a CD. The applicants' representative submitted that his review of the CD, which he stated contained 740 files, indicated that many of the documents bore no relationship to the Notice. The Council's representative did not rely on anything in that CD that might provide evidence as to complaints or comments or observations with respect to the operations of BEC. Based on this material, I accept the applicants' submission that in the absence of complaints, they have shown they are responsible operators who can manage such events without complaint.
54I accept the evidence of Mr Lonergan that the physical location of the premises outside of the Byron Bay Town Centre is a factor in considering the potential for adverse impacts of the extended operation past 1.00am. Mr Lonergan accepted, however, that there would be a concern if people went to BEC from other venues in the Byron Town Centre. Mr Soulsby's concerns about poor lighting and lack of passive surveillance opportunities in the industrial area, and thus the potential for public safety issues, are confirmed by the report provided by the Council's Environmental Health Officer in the assessment of development application DA 10.2007.415.1, who commented (exhibit 3, p 152) on observations of "dark unlit streets, alcohol and drug affected patrons walking along the roadways".
55I am satisfied that the concerns that BEC might attract people who had left other licensed premises in Byron Bay Town Centre are warranted, based on that evidence, and also that they could be addressed, as discussed during the hearing, if the operation for large overnight events were restricted to ticketed events, with a prohibition on entry to the venue after a specified time. That could appropriately be identified by reference to closing times of other licensed venues. I also accept, based on the evidence of the planners, that potential public safety risks could be addressed at least to some extent by the provision of additional street lighting to improve safety for patrons parking of necessity some distance away from the venue. That issue is discussed below in relation to proposed condition 10. Subject to the imposition of such conditions to mitigate potential adverse social or public safety impacts, I am satisfied that it is appropriate to approve the proposed four large overnight events, starting no earlier than 6.00pm.