Vinson v Randwick Council

11 The first matter to establish is the matrix for consideration of each of the three issues in contention in those proceedings. I propose, therefore, to set out what are the appropriate planning principles for consideration in such cases and then to apply those tests to the matters in contention in the present instance.

Planning principle: Applications for increase in trading hours, increase in permitted patron numbers or additional attractions for licensed premises

12 In Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277, Tuor C considered the principles to be applied when assessing an application for an extension or intensification of a use which may have an adverse impact on residential amenity. She said: 25. Principles for the assessment of an extension or intensification of a use which may have an adverse impact on residential amenity, such as a hotel, are: + First, is the impact of the operation of the existing use on residential amenity acceptable?

If the answer is no, then an extension or intensification, would be unacceptable unless there is no overall increase in impact or there are measures proposed which would mitigate the existing impact. + Second, if the answer is yes, is the impact of the proposed extension or intensification still acceptable? 26. In answering the first question, it is not sufficient to assume that a use operating in compliance with its approval has an acceptable impact.

13 In amplification of the broad principles set out in Randall, the planning principles for testing an application for licensed premises to extend trading hours, increase permitted patron numbers or for additional attractions such as music or other entertainment require addressing the following questions: o What are the adverse impacts of the present trading hours, permitted number of patrons and permitted activities? Evidence of anti-social behaviour at or linked to the premises taken from records such as the police COPS system and/or other police records and/or diaries kept by local residents is preferable to generalised anecdotal evidence that cannot be tested by the applicant against any records kept by the operator of the premises. A similar position applies to complaints about other amenity impacting behaviour such as noise from people on the premises or its plant and equipment; noise from entertainment provided on the premises or the noise necessarily arising from patrons such as car doors, engines starting or late-night conversations in residential streets in the vicinity. Demand for on-street parking may also be relevant. In assessing the likely adverse impact of increased trading hours, permitted number of patrons or permitted activities for licensed premises, the objectors' fears of adverse impacts, no matter how genuinely felt, are relevant only to the extent that there is a reasonable probability that impacts will occur. o What measures are in place to address those impacts? Measures include the number and times of engagement of security personnel, designated duties performed by them together with patrolling patterns. Identification of and responses to specific trouble spots should be considered. The method and timing of street litter collection are also relevant. For premises that provide entertainment, noise control measures that do not require intervention by an operator may also be relevant. o How are those measures documented? A well-documented management plan for the premises and its availability to local residents is a positive factor. The measures that are currently in place to record and respond to complaints made by residents are also relevant. o Have those measures been successful? The period during which the control measures (for the current trading hours, permitted number of patrons and permitted activities) have been operating is relevant to enable assessment of the likely success of their being applied to extended hours. If the present management regime has been in operation for a relatively short period, or has been unsuccessful or not fully implemented, less weight can be given to it than to a management regime which has succeeded in reducing antisocial behaviour. o What additional measures are proposed by the applicant or might otherwise be required? If any extension of hours, numbers or activities is likely to be acceptable but only subject to additional measures to reduce noise or anti-social behaviour, a trial period may be appropriate to test those measures.

Noise from within the premises 14 I turn first to consider the issue of adverse noise impacts arising from the present activities and how those impacts fall on the neighbouring properties; measures taken to address them and future ameliorative measures. 15 It was clear from the view which was undertaken of the premises and the surrounding residential area that the property occupied by Ms Lai at 205 Alison Road was the most immediately directly impacted by noise which emits from the premises. Ms Lai's premises are at the first floor of the building at 205 Alison Road and on the side facing the premises.

16 The operation of an existing compressor or mechanical exhaust ventilation for an air-conditioning system does have an adverse impact on her amenity. This equipment is located immediately adjacent to and level with the second bedroom of her property. Similarly, noise is generated from two nearby exhaust systems serving the Bistro's kitchen.

17 However, measures had previously been agreed or required to be put in place that would address those impacts - although some appear to have been less than completely (or, perhaps, competently) installed and others may have failed.

18 In the context of conditions which would be attached to any approval of the present application, the applicant has agreed that the compressor near Ms Lai's second bedroom window could be decommissioned as it was presently redundant.

19 It was put on the applicant's behalf that the appropriate way to achieve this would be by disconnecting its electrical switching thus rendering it impossible to start the unit without the intervention of a tradesperson to rewire the switching. An alternative, but obviously more expensive, proposition could involve the removal of the unit in its entirety.

20 Choosing between these options was not required in the proceedings and was, effectively, deferred for further discussion between the parties and, if necessary, submissions to me, should the application otherwise be successful.

21 The applicant also, as I understand the position, offered to ensure that earlier proposed silencing works to the exhaust vents to the Bistro's kitchen would be carried out.

22 These matters of rectification or prevention, obviously, arise with respect to the present activities of the hotel but I accept that the applicant has offered, in good faith, to attend to those matters as part of applicant's approach to the POPE application.

23 With respect to the noise which would be generated within the premises if the POPE application were to be granted, I have had the advantage of Mr Murray's expert opinions.

24 Mr Murray was present during the course of the site inspection. He had earlier provided the parties with a written statement of evidence dealing with the measures he considered were necessary to ensure that no noise was emitted from premises in a fashion that would cause disturbance to any of the neighbours if a POPE were to be granted as sought. He also, by the conclusion of the hearing, had provided draft conditions in support of his position.

25 His initial report was made on his assumptions as to the nature of the glass roof to the Bistro area at the eastern side of the hotel. This is the side of the hotel adjacent to the building in which Ms Lai's residence is located. His assumptions were as to the thickness and lamination or non-lamination of that roofing glass.

26 During the course of the proceedings, it was agreed that the applicant would seek confirmation as to the specification that glass; provide that specification to Mr Murray and that Mr Murray would subsequently provide a supplementary report detailing what physical remedial measures were required to address the noise generated by the proposed entertainment.

27 The applicant's solicitors made that additional information available to Mr Murray by letter dated 11 March 2005 (after the conclusion of the hearing). It shows that the glass is 10.38 mm thickness laminated safety glass. The letter set out a number of detailed matters for Mr Murray to consider in light that specification.

28 By letter dated 14 March 2005, Mr Murray responded to the applicant's and the council's solicitors and a copy of that letter has been filed.

29 I have carefully considered the terms of the questions posed by the applicant's solicitors and Mr Murray's responses to those questions. The questions, themselves, arose from the various elements that I observed in what might be described as an internal circumnavigation of the premises undertaken whilst noting those apertures and glazed areas through which noise might be transmitted to potential hearers outside the premises.

30 Mr Murray set out his conclusions concerning six matters and indicated that, to give effect to the noise amelioration conditions which he had earlier proposed (which, in their proposed outcomes, the applicant had indicated his concurrence) that a limited range of works be carried out. It was his expert opinion that if those works were carried out, there would be no detectable noise from the entertainment at any receptor residential premises.

31 As a consequence of his evidence and what was observed on the view, I am satisfied (and I understand that the council shares this satisfaction) that imposing conditions effecting restrictions on noise levels within the premises from any permitted entertainment (with those restrictions being enforced by automatic nonhuman intervention means - thus not giving rise to matters of discretionary enforcement), the possible off-premises impacts of noise can be addressed satisfactorily.

32 Indeed, I satisfied that the measures proposed in Mr Murray's conditions when coupled with the works agreed to by the applicant addressing pre-existing noise issues would result, if the application were otherwise satisfactory, in a modest yet significant neighbourhood improvement for noise presently emitting from the premises. I do note, however, that there may well be an existing obligation on the applicant to implement at least some of the measures to address some of the noise presently emitting from the premises.

33 I therefore conclude that there would be no adverse noise impact arising out of the proposal that cannot satisfactorily dealt with by way of conditions and that the additional ameliorating measures offered by the applicant for the present impacts on Ms Lai are to be welcomed. Parking 34 I next turn to consider the issues of present parking impacts; likely future parking impacts if a POPE were to be granted and, in the absence of the applicant being able to ameliorate any future parking impacts by on-site parking, whether these impacts warrant refusal of the application. 35 Evidence by Mr Coady, a traffic expert, was provided on behalf of the applicant concerning parking and traffic issues. Although there are a number of minor apparent inconsistencies or contradictions in his report, he was not required for cross-examination. One relevant instance of these minor inconsistencies or contradictions is the statement on page 5 that the additional number of staff required for the premises when the POPE is proposed to operate would range from 7 to 13 persons depending on the evening, compared to the statement on page 9 that such additional staff would only be required on Sunday nights when up to 6 additional staff would be required.

36 As a second such instance, I note that the map of surrounding land uses (which is Figure 4 in the report) shows that the building opposite the premises on the northeastern corner of Avoca Street and Alison Road is marked as a retail/commercial building whereas, in fact, this building, from the view, has a substantial residential component - albeit a residential component apparently presently unoccupied and being redeveloped.

37 Although there is anecdotal evidence from resident objectors concerning difficulty in finding parking spaces in immediately surrounding streets, the council has not presented any expert evidence on this subject.

38 Therefore, it follows that, despite Mr Coady's report's minor inconsistencies or internal contradictions, I should accept the otherwise uncontradicted pattern of patron accumulation and parking availability data from this report.

39 In this context, I note that a significant element of the case put on behalf of the applicant was his assertion (and that made by Mr Scicluna, an executive of the group owning the hotel) that the desire of the owners was to seek to retain those patrons who visited the hotel for a meal in the Bistro and then departed as only some small proportion of such dining patrons now returned later in the evening.

40 This is, to a considerable extent, reinforced by the patron interview surveys conducted by Mr Coady where he notes that a significant percentage (averaging nearly 80% over the 4 nights of the survey) answered positively to the question Would you stay later than usual if there was entertainment? 41 It is also supported by the statements on behalf of the applicant made by existing patrons of the premises. The statements are in support of having entertainment at the premises and indicate that, as a general proposition, if such entertainment were provided it would attract them to stay longer at the premises.

42 I am, therefore, prepared to conclude that, if the POPE were granted, it is probable that the dominant proportion of the additional patronage would come from the retention of existing clients of the premises - thus delaying their departure to a later hour. I am, however, not prepared to conclude that all the additional patronage would come from this source (and I do not understand that the applicant submits that I should do so).

43 The parking accumulation element of Mr Coady's survey was conducted over a significantly wide area in the vicinity of the premises.

44 The primary complaint from residents concerning parking related to parking pressures in Victoria and Albert Streets and, perhaps, in George Street.

45 Mr Coady draws the conclusion across the broad area surveyed by him that there are 248 parking spaces available in this area and that there is sufficient capacity to absorb any increased parking demand, even on his less favourable (to the applicant) parking demand assumption that there may be some 15% of additional patrons who would drive to the premises.

46 However, a specific consideration of Victoria, Albert and George Streets, taken from the data across all four evenings surveyed that leads me to concluding that there is, in fact, much less elasticity in parking availability in these three streets than that which may be necessary to meet the additional demand.

47 Indeed, on one interpretation of Mr Coady's evidence concerning additional staff parking demand (that from page 5 of his report), this staff parking demand would almost entirely on consume the additional capacity in these three streets.

48 In addition, the other obvious place for parking having proximate access to the hotel is Lingard Street which shows modest absorbing capacity for additional parking.

49 Although it is possible that the additional demand for parking could be met within the broader catchment surveyed by Mr Coady, it is self evident that the first preference for patrons visiting the hotel will be to park in the immediate vicinity of the premises. This, effectively, is the demand stressed area of the four streets that I have nominated - Victoria, Albert, Lingard and George Streets. Three of these, indeed, are the streets from which resident evidence is predominantly available as to the demand pressure and competition for parking in the vicinity of homes with no off-street parking.

50 I, therefore, conclude with respect to parking, there presently being no on-site parking on the premises nor any opportunity to create such on-site parking, that approval of the POPE application is likely to lead to greater competition for the limited on-street parking in the very immediate vicinity in the premises. Whether or not intending patrons who were unable to obtain parking in this immediate area would park somewhat further away and walk to the premises is a matter about which I do not consider it appropriate to speculate.

51 I am not satisfied that the possible maximum increase in demand for on-street parking, however, could not be met with in the immediate vicinity with spill over into the larger catchment dealt with by Mr Coady.

52 Had this been the only a matter which was cause for concern with respect to the application, it would not, on balance, be sufficient to warrant refusal but certainly would warrant imposition of a trial period. A condition of any trial, would, in my view, be the requirement that the applicant undertake a further parking survey at the midpoint of the trial period and a further one prior to the lodgement of any application to extend the life of the trial or to make the hours trialled permanent ones. Departing patrons and residential amenity 53 Finally, I turn to consider the issues of anti-social behaviour impacts on residents in the vicinity of the premises. 54 A combination of the evidence given by Sergeant Gray, the officer in charge of licensing regulation within the relevant Local Area Command of the New South Wales Police, when coupled with the evidence given by the residents (both during their oral evidence on-site and as part of the written letters of objection to the application) leads, in my view inevitably, to two conclusions concerning the present operation of the premises. These conclusions are: o There is no history of any serious or significant incidents of antisocial behaviour on the premises or in the immediate vicinity, arising from patrons of the premises; but o There is a reasonably consistent occurrence of low level antisocial behaviour of arising from the activities of departing patrons. This is evidenced by behaviour such as talking loudly and slamming car doors together with some instances of public urination and the like. 55 With respect to this latter conclusion, whilst I have anecdotal evidence from residents confirming the occurrence of such behaviour, as discussed later, I have no records from the management which could contradict it. I therefore accept the residents' evidence in this regard.

56 However, given the fact that there are a number of other public facilities such as restaurants from which patrons are also likely to be departing later in the evening, it would be unfair to the applicant to attribute all of this latter behaviour to patrons departing from his premises.

57 These conclusions as to the nature of impacting behaviour is confirmed, in my view, by the nature of the complaints made to the council concerning the premises. Many of these complaints relate to the emission of noise impacting on Ms Lai or others in the vicinity.

58 At present time, one of the conditions attached by the Licensing Court of New South Wales (the Licensing Court) to the operation of the premises concerns the employment and activities of security personnel. It is in the following terms: 5. The licensee is engage not less than three (3) independent licensed security personnel, suitably attired, to be in attendance at the hotel on each night that the hotel trades beyond 12:00 midnight, from 10:00 pm to one half (1/2) hour after the hotel ceases to trade until that last patron has left the vicinity of the hotel which ever is the later. On those nights that the hotel trades beyond 03:00 am the security shall be present at the hotel until at least 07:30 am or until one half (1/2) hour after closure of the hotel whichever is the earlier.

59 The license conditions also make reference to how these security personnel are to discharge their duties. The relevant condition provides: 6. Two (2) of the security personnel referred to in the above condition are to undertake constant patrols of the environs of the hotel premises including Alison Road east of Avoca Street to 234 Alison Road; George Street, Victoria Street and Lingard Street, Rae Street to number 6 and the East side of Avoca Street to Albert Street, to ensure so far as possible that hotel patrons do not disturb the quiet and good order of the neighbourhood.

60 There is a deal of evidence in the proceedings from which it can be seen that the conditions as to the number of security personnel and their patrolling activities have not been observed by the present applicant or his predecessor.

61 With respect of the number of security personnel at the hotel, the applicant conceded that he had taken a decision, at an indeterminate date but, on my understanding of the evidence, toward the middle of 2004, that on Monday and Tuesday nights, although the hotel trades in a pattern which would require employment of three security personnel, if the conditions were observed, only two were to be employed.

62 Mr Scicluna gave evidence that he was aware of and concurred in this decision. 63 It is not proper for me to consider whether or not this variation is appropriate and, in any event, I would not have sufficient evidence to do so.

64 Both the applicant and Mr Scicluna gave evidence that it was intended that an application would be made to the Licensing Court to vary the relevant license condition but that this had not been lodged. No satisfactory explanation was forthcoming for this not being the subject of application to the Licensing Court. This is an oversight which is particularly difficult to understand given the application which is subject of these proceedings and the fact that matters relating to the behaviour of departing patrons would inevitably be an issue in these proceedings.

65 Also tendered in evidence were the records between 28 January 2005 and 1 March 2005 of the activities of those security personnel on duty at the premises.

66 I am satisfied from the content of those reports that on only one evening is an external patrol of the premises specifically recorded. On most of the reports (21 out of 27 tendered), notation is made, in varying terms, which is consistent with only internal security patrolling being undertaken.

67 Indeed, the evidence given by Mr Coulthart, a security consultant engaged on behalf of the owners of the hotel (to undertake observation of the premises including a general compliance audit of the premises, its security and the surrounding licensed and non-licensed premises) demonstrated that the constant patrolling in the vicinity of the premises on the streets referred to in the relevant licence condition was not being undertaken on the night of his audit. This is all the more surprising given the fact that Mr Coulthart acknowledged that the management of the premises was aware that he was to undertake the compliance audit for which he was commissioned.

68 As a consequence, I am forced to conclude that I am not able to determine whether or not the present security patrolling regime required by the conditions imposed by the Licensing Court would adequately address the low-level antisocial behaviour impact experienced by local residents because, as a matter of fact, the required security personnel numbers and the operational regime for those security personnel have not been and are not being implemented by the applicant as required by the conditions of the Licensing Court.

69 Whether or not they would be satisfactory in addressing those impacts, if carried out as required by those conditions, is not a matter upon which it is appropriate for me to speculate, as I have no satisfactory evidentiary basis from which I could draw any conclusion.

70 With respect to the additional impacts of more patrons departing later in the evening - this being, in effect, the position contended for by the applicant rather than additional patrons arriving and departing - a document entitled Security and Noise Management Plan for Entertainment (the security and noise management plan) was tendered on behalf of the applicant.

71 Although two versions of the document were in evidence, I do not consider it necessary to examine any differences that might lie between them because either version is, from the face of each version, unsatisfactory.

72 The documents evidence sloppy preparation and inattention to detail. There are also a number of significant inadequacies in them. Any document which commences, on its cover page, by misspelling the name of the premises to which the document applies and does so in ~ 24 point type does not get off to a good start.

73 As I indicated to Mr Clay during the proceedings, were I minded to conclude that the application should be given an approval in some form or another, considerable work would be required on the security and noise management plan and that this would be required prior to the issuing of any orders which would grant an approval.

74 More fundamental matters arise with respect to the utility of the security and noise management plan or the degree of confidence I should have in it, however.

75 First, the applicant conceded in the witness box that he had not had any part in the development of the document and was not familiar with the detail of its contents. In general terms, a similar position was revealed with respect to Mr Scicluna, who is the applicant's supervisor. 76 Second, the applicant also conceded in the witness box that he was unable to recall and did not know the detail of the patrolling pattern required by the present Licensing Court conditions. I am satisfied that he had also taken no proper steps to ensure their observance.

77 It is also of concern that there are no specific steps formally in place to draw the attention of existing security personnel to the presently required patrolling functions if they are to observe the license conditions imposed by the Licensing Court.

78 The only relevant document in evidence is a document of 24/7 Safe & Secure Pty Limited, the security contractor at the premises, which document is entitled Standard Operating Procedures.

79 I am prepared to assume, for the purposes of this discussion, that this document is drawn the attention of all security personnel employed by the contractor and deployed to provide security services at the premises.

80 The only relevant element of these standing operating procedures is a bullet point which reads: o Acquaint yourself with licensing conditions of the venue i.e. max number of persons allowed etc.

81 Whilst this might imply that the security personnel were to have their attention drawn to the patrolling condition of the Licensing Court set out earlier, there is no evidence that this was ever expressly done to all or any of the present security personnel.

82 It is reasonable to assume, in my view, from the records covering the period between late January and the beginning of March this year of the activities actually undertaken by the security personnel coupled with the fact that the applicant, himself, as the licensee of the premises was not able to describe the terms of patrolling requirements that these requirements were not generally, if ever, drawn to the attention of the security personnel supplied by the security contractor to the premises.

83 I have proceeded to consider these issues on the basis of two presumptions made in favour of the applicant. These are that: o The proposed security and noise management plan could be turned into an appropriate and acceptably structured regime to be applied to the premises; and o If I granted a consent subject to conditions which included a requirement to observe such a revised security and noise management plan, the presumption is that the applicant would, in fact, observe those conditions.

84 I therefore need to answer, in light of these presumptions in favour of the applicant, what I consider are the two questions relating to the present application which arise for determination of the acceptability or otherwise of the application vis-a-vis the impacts on the amenity of the surrounding residential properties.

85 These questions are: o What is the level of probable future impacts? and o Can the measures proposed by the applicant reduce them to an acceptable level?

86 Consistent with the findings with which I commenced this section of this decision, I am satisfied that there is no persistent degree of high level or significant antisocial behaviour. This conclusion is based on the evidence given by Sergeant Gray and the negative inference from council's records - that is the absence of complaints in such records about major brawls or similar incidents.

87 However, I am satisfied that there is a degree of persistent intrusive and inappropriate low-level antisocial behaviour which, at least to some extent, is to be attributed to patrons departing from the premises. I am also satisfied, on the basis of the written and oral evidence of the residents that this has unacceptable levels of impact on the amenity of surrounding streets - particularly in Victoria Street. I am of the view that it is also follows necessarily, if the expectations of the applicant and the owners were fulfilled [see (39)], that there would be more patrons departing at a later hour thus increasing the liklihood of increased antisocial behavour (and, certianly, at the very best for the applicant, it would be absurd to postulate that increased numbers of departing patrons at a later hour would reduce the risk).

88 In reaching this conclusion, I have taken into account the fact that, as is well recognized in proceedings of this nature in this Court, it is impossible for any licensed premises (no matter how well managed or vigorously patrolled both within the premises and the immediate neighbourhood) to eliminate entirely all instances of antisocial behaviour.

89 It is, as I understand the position, well accepted that the role of management is to minimise such behaviour and to ensure that any incidents are isolated and, if possible, dealt with promptly by the staff or contractors of the premises. 90 For the reasons canvassed earlier, there is no recorded history, let alone an adequate recorded history, from which to conclude that the implantation of a revised security and noise management plan would in fact lead to the minimisation of such behaviour and assurance to the residents that any incidents would be likely to be isolated and dealt with promptly by the staff or contractors of the premises. Conclusions 91 Although I am satisfied that two of the three issues contended as warranting refusal do not lead to such a conclusion (albeit one does warrant a trial period being imposed), my degree of uncertainty that any additional anti-social behaviour of departing retained patrons or additional newly attracted patrons can be managed to protect the nearby residential areas warrants refusal of this application. 92 I emphasise that, in reaching this conclusion, I am taking a precautionary approach as a consequence of my lack of confidence in the outcomes of the present security management regime and the fact that there is no satisfactory past performance upon which confidence could be founded that implementation would, in fact, lead to the minimisation of low level antisocial behaviour and that any incidents would be likely to be isolated and dealt with promptly by the staff or contractors of the premises. In reaching this conclusion, I specifically note that I am assuming that, contrary to the past performance of the applicant and the owners, any conditions would be observed in their entirety. My lack of confidence is a qualitative doubt not a quantitative one. 93 It may be that a better supervised and more rigorously applied (and recorded) use of presently conditioned numbers of security personnel could lead to an improvement in existing amenity which would give some future consent authority the necessary confidence that increased numbers of later departing patrons would not have such impacts on the nearby residential area as to warrant refusal of some future application. However, it is not appropriate to base my determination of this application on a mere speculation of this occurring. Orders 94 The orders of the Court, therefore, are: 1. The appeal is dismissed; 2. Development Application 715/2003 for a Place of Public Entertainment Authority for a hotel known as the Coach and Horses Hotel located at 147 Avoca Street, Randwick is determined by the refusal of development consent; 3. Costs are reserved; and 4. The exhibits are returned

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