Ryan v Sutherland Shire Council

Land and Environment Court (NSW)|2006-03-24|Before: Mr J

The applicant's submission on the objectors' evidence

30 Mr Wilson, counsel for the applicant, submitted that I should disregard this objector evidence as being merely anecdotal and, and as a consequence, difficult if not impossible for the applicant to counter.

32 The first is that, contrary to what would have been the normally expected position, the hotel itself has no written records able to be put in response. There is no suggestion of fault in saying this, merely a bald restatement of the earlier noted actual consequences of the fire which destroyed the premises. Thus the only evidence on this issue, on behalf of the applicant, is also only anecdotal but is evidence I am asked by Mr Wilson to accept.

33 More tellingly, however, was the evidence given by Mr Lawler that, during his period as licensee of the premises on behalf of the group, on the occasions when the hotel had employed security guards, those guards only patrolled within the site or those parts of the footpath of Gymea Bay Road in the immediate vicinity of the premises.

34 It was Mr Lawler's evidence that, although not required by the December 2003 Plan of Management for the hotel, it was a regular practice on the busier evenings to have one or two security guards employed by the hotel. 35 The fact that, on such occasions, the security guards had such a limited area of patrolling off the premises means that there is no possibility of evidence of any observation by them that might otherwise have been made concerning anti-social behaviour and its causes in the broader area of concern to the local residents (as might have been the case had a wider and more appropriate patrolling precinct been observed). 36 As a consequence, I accept that the lower-level anti-social behaviour has decreased during the period when the hotel has not been trading. The nature of the evidence is such that I can also only conclude that that the decrease in anti-social behaviour also arises as a consequence of the hotel not trading.

37 Evidence was given on behalf of the NSW Police Service by Sergeant Stanton who is the Licensing Sergeant for the local area command within which the hotel is located. The Police Service oppose the application. 38 He produced two incident report tables, for comparison, between the twelve month period immediately prior to be fire which destroyed the hotel and the twelve month period which ceased shortly prior to the hearing of this appeal. 39 In purely statistical terms, for the area defined by the sergeant and the range of offences defined by him, the police computer records were interrogated to provide a bare bones analysis of that information together with a pair of clustering maps locating where the various incidents took place.

40 It is clear, from a consideration of this material, that the raw data shows a significant difference between the incidents in the number of the matters of concern the police between the period when the hotel was trading and period when it was not.

41 However, this evidence should, in my view, be considered with significant reservations about its utility. Indeed, I have concluded that it would be inappropriate to draw any inferences adverse to the hotel from it. 42 I have so concluded for the following two reasons. 43 First, the covering memorandum with this material urges caution about unreservedly accepting the accuracy of the locational maps because of changes to the computer software used to plot the locations of the earlier data set incidents. 44 Second, the statistical data and the limited information available in support of it is not in a form which permits me, with any confidence, to support any conclusions - particularly not conclusions which would be adverse to the hotel - notwithstanding the decrease in recorded incidents during the period when the hotel was not trading.

45 For example, offences which were committed against the hotel itself (such as stealing from the bottle shop), show up in these tables and, obviously, are not capable of supporting any adverse inference against the hotel management itself. 46 There are other reasons arising from lack of specificity or details which reinforce my decision to conclude that I will not draw any adverse inference whatsoever from the police information relating to the more serious behavioural elements about which I am invited to draw such conclusions.

Conclusions The early "daylight" trading concerns

47 Given the present permitted trading hours of the hotel, the concerns which were expressed on behalf of the church and the preschool about the possible interaction, in the early mornings, with departing patrons of the hotel, this can be of no import in these proceedings as the hotel is already permitted to trade, should it choose to do so, commencing at 5am on six days the week.

48 With respect to the late-night extension proposed between midnight and 5am, six nights a week, Mr Wilson proffered, on behalf of the hotel, a condition that it would be a "lock down" from 2am, prior to the closure of other late-night alcohol facilities in the locality such as the Trade Union Club, which would mean that only those patrons who were already within the premises at 2am would be permitted to stay and no new patrons will be pair met prior 8am. This, it was suggested would diminish and, during those hours, remove the so-called "honey pot effect" of attracting persons to the hotel after other drinking venues within the Sutherland Shire had ceased trading for the night. It was suggested that this would be no more than twenty or thirty remaining patrons. 49 This "lock down" was acceptable to the hotel as its primary source of revenue (at least from such late night patrons) is from gambling rather than from alcohol consumption. 50 I do not accept that this will necessarily reduce the anti-social behaviour in the surrounding area which is likely to be caused by departing pedestrian patrons - even at a lower level of patronage (which I accept would occur as a result of a "lock down"). 51 Mr Brown gave evidence on travel modes which came from surveys conducted at other hotels operated by the group. Although the significantly changed parking arrangements can be expected to eliminate any late night adverse vehicle door slamming; engine starting; or other "rev head" vehicle noise for the residents of Talara Road, Mr Brown's evidence was that between 1 in 4 and 1 in 5 patrons drove themselves to the group's hotels (and that these ratios decreased later in the evening). 52 Mr Brown's survey data did not shed any further light on how the other 75% to 80% of patrons arrived or departed (whether on foot; as vehicle passengers driven by another patron, by taxi; or by public transport). 53 However, it is reasonable to conclude, as a subsidiary conclusion derived from that set out earlier concerning anti-social behaviour in the nearby streets, that some of these patrons depart on foot and behave in the fashions complained of by the objectors. 54 For the first of the Vinson tests, I am unable to quantify this behaviour with precision but I am able to conclude that I am satisfied as to its existence and that the causation of at least part of it lies with patrons of the hotel, during the group's management of the hotel. 55 In any event, a "lockdown" would not have any preventative value prior to its commencement at 2am. Plans of Management

56 The hotel proffered a revised Plan of Management dated March 2006. Mr Brown conceded that this was based on a generic plan of management from within the group for the various hotel premises managed by the organisation.

57 This Plan of Management was amended as a consequence of a number of preliminary comments made by me concerning a number its provisions. 58 Sergeant Stanton gave evidence that, in his opinion, security guards would be require from at least 9pm on any trading night and that a minimum of four was necessary and that an extended patrolling area encompassing not merely the immediate environs of the hotel and the shopping strip but also relevant surrounding residential streets. 59 However, the area from Gymea Bay Road through to Talara Road, along the council reserve and pathway, was considered by Mr Brown as being an inappropriate area to be patrolled because of his concerns, on occupational health and safety grounds, for the safety of the patrolling security guards due to lack bold that adequate lighting. He conceded that this problem could be addressed if the guards patrolled in pairs.

60 I am satisfied that the March 2006 Plan of Management, even though significantly improved from its version at the commencement of proceedings, would still require significant further amendment to reflect appropriate security guard numbers and their commencing times. As well, their patrolling patterns, broadly consistent with Sergeant Stanton's evidence might provide, if implemented, a basis for addressing the anti-social behaviour in the general vicinity of the hotel. 61 Given these defects, I am satisfied that it is, as the council suggests, premature to alter the trading house of the hotel prior to its recommencement of trading after rebuilding because I cannot be satisfied that the adverse impacts caused by patrons of the hotel in the past can be cured by the proposed management regime for the rebuilt premises - even during the present permitted trading hours. 62 As consequence, in response to the fourth Vinson question, I am satisfied that the measures which were in place during the previous trading regime of the hotel were not successful. 63 As further consequence, in response to the fifth Vinson question, I am satisfied that the additional measures proposed are not ones which I would have confidence will addressed by improving, (although accepting that elimination of anti-social behaviour, in its entirety, is not possible), the levels of such behaviour in the area for which hotel should take an appropriate degree of social responsibility.

64 The appropriate course of action for to follow is to suggest to the management of the hotel that they implement such plan of management as they consider appropriate in light matters which have arisen during these proceedings and, after an appropriate period of implementation of such a plan of management, on the present trading hours and armed with such observational material and is might come from such a regime, management could consider, sometime in the future of its own choosing, whether or not they wish to make a further application for modification of the presently permitted trading hours. 65 However, I am satisfied that the time is not now as it is not appropriate to conduct an experiment on the local community on some wider basis than would presently be permitted when an experiment is already available and desirable based on the presently permitted trading hours.

Orders 66 The orders of the Court, therefore, are: 1. The appeal is refused; 2. The application to modify the trading hours contained in Condition 66 of Development Consent No. 03/0661 for the Gymea Hotel is determined by the refusal of development consent; and 3. The exhibits are 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.

CITATION : Ryan v Sutherland Shire Council [2006] NSWLEC 142

Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277; CASES CITED: Vinson v Randwick Council [2005] NSWLEC 142; .

12 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. I said that the tests to be applied were: 1. What are the adverse impacts of the present trading hours, permitted number of patrons and permitted activities? 2. What measures are in place to address those impacts? 3. How are those measures documented? 4. Have those measures been successful? 5. What additional measures are proposed by the applicant or might otherwise be required?

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