Legman Pty Limited v Council of the City of Sydney

Legman Pty Limited v Council of the City of Sydney - [2005] NSWLEC 640 - NSWLEC 2005 case summary — Zoe

[18]

21 With respect to the first of the matters called into play by the trading hours policy, the council has, by its past trial consent, indicated that strict compliance with these closing time requirements is not necessary. In the absence of any permanent residences in the vicinity, I consider that I should start from the same position of flexibility taken earlier by the council. 22 With respect to the second of the matters called into play by the trading hours policy, it does not appear, strictly speaking, to apply to the present application, as the application is one for an immediate and confirmed permanent extension of trading hours. It is not an application for the extension or review of the earlier trial period. In any event, the test of failure - being whether there are consistent and supported complaints against the premises does not arise given that, as earlier noted, there do not appear to have been any third party complaints about the premises during the period of trial or post-trial (and un-consented) late trading. Future control of the premises 23 A relevant matter requiring consideration is that effective operational control of the business changed in mid-2005. At that time, Mr Simon Cooke and persons associated with him entered into a contract for the purchase of the business. Mr Simon Cooke and his associates are using, as their vehicle for purchase, a company known as Moshpit Pty Limited (Moshpit). Control of the business was also transferred from the present licensee and persons associated with him to Mr Cooke and persons associated with him. 24 With the exception of the present licensee, who will retain a 20 % interest in the business (but who will not remain the licensee of the premises), those who will be associated with the new venture were not associated with any previous control of nor have they taken part in the past management of the premises. 25 Mr Cooke is to become the new licensee and has recently undertaken the relevant training courses to permit him to do so. Mr Cooke has had the senior management role for the premises since the proposed contract was entered into in June. 26 The proposed purchase will not be completed unless these proceedings are concluded with the granting of consent for the extended trading hours. 27 Mr Cooke gave evidence and this is discussed later in these reasons. The framework for consideration of the issues 28 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. 29 The questions to be addressed are: - 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?

[21]

35 The range of material recorded and the responses set out in Exhibit AC7 (as well as in the source documents of both the police and the management from which the information is obtained) in many respects comprise a two edged sword for the nightclub. On one hand, the documents reveal the matters of fact which give rise to the police concerns and, on the other hand, they reveal the ability and preparedness of the security staff to deal with these matters as they have arisen. 36 The more specific conclusions to be drawn are: - There have been a significant number of incidents involving altercations at or in the vicinity of the premises during the period covered by the survey - from the beginning of January 2004 to the end of June 2005; and - For many but not all of these incidents, the police had been involved; however - It is also clear that the incident books for the period maintained by the management of the premises have recorded a number of issues and instances of antisocial behaviour, ranging from inappropriate harassment of various kinds through to brawling, which are not featured in the police reports; and - Most (if not all) of those instances appear to have been dealt with, appropriately, by security staff engaged at the premises; and - There are also other instances recorded where it would appear that, without involvement from the police, security have prevented persons using false identity documents from entering the nightclub. 37 Mr George Smith, a town planning consultant, gave evidence on behalf of the applicant. He said that, on his calculations, between 50,000 and 85,000 patron visits had been made to the nightclub during some 8 months of the period referred to in Exhibit AC7. This evidence was uncontradicted. 38 As previously noted, a number of incidents are recorded which have, from the face of the documents, appropriately required and been accorded the intervention of the security staff but have not resulted in police involvement. Taken overall, I am satisfied that the number of incidents, compared to the patronage, is undesirably high but not, in the context of what is discussed in the following paragraphs, unacceptably high under the circumstances of the changed management and proposed sale to Moshpit. 39 Senior Constable Carr also gave evidence about the position since Mr Cooke assumed management of the nightclub. 5. In Paragraph 6.1.7 on page 9 Mr Smith states that relations with the Police have improved. I have found Mr Simon COOKE to be a more reliable Manager than the Licensee Mr Joshua CAMPBELL. I have held two (2) meetings in which Mr COOKE was present. During these meetings Mr COOKE has appeared to take an interest in the concerns that police have about the premises. The last meeting held was in August regarding the outcome of the audit for the 'Alcohol Linking Project'. Since this time he has made contact via email to inform me of an upcoming Minors Function event.

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