The main issues before the court were that of possible impacts of the development including antisocial behaviour, unsatisfactory management of the hotel , increase in parking demand and additional workload on the police.
Senior Commissioner Moore referred to the planning principle in Vinson v Randwick [2005] NSWLEC 142 which provided guidance where applications involved intensification of use of licensed premises. The Senior Commissioner felt it necessary to supplement the principle in Vinson with additional steps for consideration of the intensification of use of unlicensed premises where there are multiple licensed premises that contribute to a cumulative social impact on the amenity of nearby residences.
In making his assessment the Senior Commissioner said the following needed to be considered:
- What other licensed premises are in proximity to the premises for which this application was made?
- Any other relevant significant venues at which alcohol may be purchased and consumed, eg. the Sydney Football Stadium/Cricket Ground Complex.
- What is the trading account pattern of the premises and of other premises that are in the locality?
- In light of the trading pattern of all licensed premises in the locality, is if likely that there will be movement through the relevant residential area by patrons of those premises in addition to those of patrons attending the premises for which the application is made?
- To what extent is there evidence of movement, through the residential area of patrons after the closing of any licensed premises with an earlier closing time to other, later trading licensed premises in the locality?
- Are the patron demographics of the various licensed premises comparable?
- What are the adverse impacts of the present trading hours, permitted number of patrons and permitted activities of all licensed premises impacting the relevant residential area?
- Is there credible evidence of specific instances of any antisocial behaviour that are able to be attributed to patrons of the hotel being the premises with respect to which the present application has been made?
In the context of these multiple licensed premises he considered the following:
- What measures are in place to address the aggregate antisocial impacts and which premises are taking those steps?
- How are those measures documented?
- Have those measures been successful?
- What additional measures are proposed by the applicant or might otherwise be imposed on management of the hotel as part of the approval?
- To what extent if any do these require cooperation of other licensed premises in the vicinity and is there any evidence that this will be given?
He indicated that the two critical questions after considering all these matters were the following
- What are the likely resultant impacts in light of all the foregoing discussion on the local residential area if the proposal were to be approved?
- Are those impacts acceptable and should the increase in patron numbers be approved with or without a trial period?
The Commissioner said that the crux of what he was obliged to consider is whether or not he should conclude that if he were to permit the effective doubling of the patron numbers at the Paddington Inn this would inevitably lead to an increased level of antisocial behaviour by patrons of those premises in the locality. He indicated he should approach the issue on a precautionary basis. After reviewing the evidence the Commissioner said:
“I have concluded that the present level of antisocial behaviour in the streets of the Paddington Inn where that behaviour comprises late-night rowdiness, vomiting and urination and/or defecation in the street or on private property is an inevitable consequence of the existence in the immediate vicinity and somewhat more wide range of alcohol serving premises.”
He also said:
“Any increase in any of the unacceptable antisocial behaviours inflicted on residents in the vicinity except to the extent that such increase might be trifling and imperceptible is in itself unacceptable. If there is an obvious and foreseeable probability that the present unacceptable impact is likely to be exacerbated (beyond the imperceptible) the proper precautionary approach to take is not to permit the circumstances giving rise to that increased risk (let alone any inevitability of such increase – as is here the case).”
It is not appropriate to approve any increase in the maximum permitted number of persons on the premises because of the probability, indeed inadvisability that there will be an increase in antisocial behaviour that is entirely outside the control of the management of the premises, no matter how well managed those premises are, on the residents of the vicinity.
This is a different approach to that previously taken by the Court as the Commissioner looked at the cumulative impact of licensed premises on the neighbourhood and the Commissioner found that the management of these issues would not succeed.
We understand that this matter is on appeal.
This article was written by Tom Messenger and Jane Hewitt.
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- Case Notes - Friends of Turramurra Inc v Minister for Planning[2011] NSWLEC 2010
- Case Notes - Solotel Pty Ltd v Woollahra Council [2011] NSWLEC 1210
- Case Notes - Rogers v Clarence Valley Council [2011] NSWLEC 134
- Case Notes - Shree Swaminarayan Temple v Baulkham Hills Shire Council [2011] NSWLEC 1218
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Important disclaimer: The material contained in this publication is of a general nature only and is based on the law as at 20 September 2011. It is not, nor is intended to be, legal advice. If you wish to take any action based on the content of this publication we recommend that you seek professional advice.