Land and Environment Court New South Wales

• Medium Neutral Citation: Solotel Pty Limited v Woollahra Council [2011] NSWLEC 1210
• Hearing dates: 16 to 19 May and 2 June 2011
• Decision date: 21 July 2011
• Jurisdiction: Class 1
• Before: Moore SC

Decision

1.The appeal is dismissed;

2.Development Application 512/2009 for alterations to and an increase of the permitted patron numbers at the Paddington Inn at Oxford Street, Paddington is determined by the refusal of development consent; and

3.The exhibits, other than Exhibits 7 and B, are returned.

• Catchwords: Increased patron numbers for licensed premises; multiple licensed premises in the vicinity; inevitability of behavioural impacts on residents from existing late night trading licensed premises close to residences; aggregation of impacts of antisocial behaviour; basis for consideration of aggregated impacts and likelihood of increased impacts from granting application to increase patron numbers; unacceptability of urination on residential premises by patrons of existing late night trading licensed premises.
• Cases Cited: Vinson v Randwick Council [2005] NSWLEC 142; (2005) 141 LGERA 27; Borg Architects Pty Limited v Council of the City of Sydney [2009] NSWLEC 1305; Rifon Pty Ltd v Sydney City Council [2006] NSWLEC 778
• Category: Principal judgment
• Parties: Solotel Pty Limited (Applicant); Woollahra Council (Respondent)
• Representation: Counsel; Mr P Clay (Applicant); Ms S Duggan SC (Respondent); Solicitors; Mr B Bulford; Bruce Stewart Dimarco (Applicant); Mr A Hudson; Wilshire Webb Staunton Beattie (Respondent)
• File Number(s): 11037 of 2010
• Publication restriction: None

Judgment

Introduction

1 The commercial length of Oxford Street runs from Whitlam Square at the south-eastern corner of Hyde Park through to the five way road junction at the north-western corner of Centennial Park where Moore Park Road meets Oxford Street. The western end of the strip, from College Street to Taylor Square is within the local government area of the Council of the City of Sydney and is in a recognised late-night trading precinct that contains a significant number of late-night trading, alcohol-serving premises and is somewhat notorious for the levels of antisocial behaviour by patrons attracted to various of those late-night trading premises.

2 The more eastern portion of the Oxford Street commercial strip has none of these general characteristics being much more retail oriented (but not exclusively so) than its western counterpart. Toward the eastern end of the eastern portion of the strip, is located a hotel, the Paddington Inn (the Hotel), that is the subject of the development application that is the basis of this appeal.

The application

3 Applications concerning licensed premises that come to this Court on appeal are usually within one or more of three broad categories. These are:

• additions and/or alterations to the physical fabric of the premises;
• alterations to the trading hours of the premises; and/or
• alteration to the number of patrons permitted on the premises.

4 These proceedings concern an application that incorporates the first and third of these possible elements. The application was originally made to Woollahra Council (the council) seeking to modify substantially the internal space within the Hotel to incorporate commercial hotel operations - currently confined to the ground floor of the premises - to the first and second floors. The application also sought an increase in the number of persons permitted on the premises, currently limited to 350 persons including staff. The original proposal sought an increase of this number to 800 persons. No amendment is sought to the trading hours of the Hotel - hours that are currently 10 AM until midnight seven days a week.

5 During the course of the processes leading up to the hearing, the proposal has been modified in two aspects.

6 First, the physical alterations are now proposed to increase the commercial operating space for patrons into the first floor only and the second floor is now to be retained solely for administrative purposes.

7 The other revised alterations include relocation of proposed air-conditioning plant - an alteration which has, in turn, enabled the deletion from the proposed built form of some external publicly visible works that the council had contended were inappropriate and out of character.

8 As a consequence of these changes, there is no matter remaining in issue between the parties to the proceedings about the proposed physical works to the premises. However, as discussed later, issues of a limited nature relating to the physical works remain pressed by objectors to the proposal.

9 As a result, the primary contest that remains between the parties concerned is the acceptability or otherwise of the impact of any increase in patrons for the premises. Although the original application sought an increase in the maximum number of persons (including staff) in the premises from 350 to 800, as a consequence of discussions at the end of the relevant experts for the applicant and the council concerning a variety of matters relating to the Building Code of Australia, the applicant now seeks an increase in the maximum number of persons permitted on the premises to 732.

The issues

10 The issues that remain for determination, as pressed by the council, relate to three aspects of what are said by the council to the adverse social impacts on the amenity of residents in the vicinity of the Hotel. Those three amenity aspects are described below.

11 The first asserted impact can be described as being unacceptable antisocial behaviour by patrons of the premises involving rowdy behaviour and antisocial acts such as public urination where these cause unacceptable amenity impacts on the local residents.

12 The second asserted impact can be described as being unsatisfactory management of the premises concerning matters on the premises or within the management's control that have an adverse and unacceptable impact on residents in the immediate vicinity;

13 The final asserted impact can be described as being increased demand for parking by increased numbers of patrons where that parking would be sought in surrounding residential areas. This is contended to lead to patrons' parking significantly and unacceptably displacing the availability of parking for local residents within what should be regarded as the appropriate potential parking catchment for the premises (this catchment being an area encompassing residential streets to the south across Oxford Street as well as streets to the north of Oxford Street and in the immediate vicinity of the premises).

14 In addition, the council also presses the proposition that any increase in numbers would create an unacceptable additional workload on the already stretched resources of the New South Wales Police in being required to attend to and deal with the impact of these premises if increased patron number were permitted.

15 In the context of the council's strong opposition to the proposed increase in patron numbers, the council also opposes the proposed internal building works on the basis that they are a necessary adjunct to this proposed patron number change. As a consequence, if the increase in patron numbers were not to be approved, the council's position is that the internal works should also not be approved.

16 Finally, although not an issue in contest between the parties, several of the local residents raised concerns about relocation of a door from the premises to William Street to a location slightly to the north of its present location. This relocation of this entrance is the only element of the alterations to the premises remaining in contention in any fashion - as other elements that may have had an external impact have been deleted as a consequence of minor redesign to address other acoustic issues that are also no longer in contention.

Framework for consideration of the first issue

17 In Vinson v Randwick Council [2005] NSWLEC 142; (2005) 141 LGERA 27, a planning principle was adopted to provide guidance where applications involved intensification of use of licensed premises (whether by increases being sought in permitted trading hours or increases being sought in the permitted number of patrons). The assessment process set out in the planning principle has been applied by the Court and has also provided assistance to consent authorities in their own assessment processes for such applications. However, that planning principle dealt with assessment and evaluation of impacts from a single licensed premises.

18 More recently, there have been instances where applications for intensification of use by a particular licensed premises have needed to be considered in the context of the cumulative impacts of a number of other licensed premises in comparatively close proximity to that in the application (see, for example, Borg Architects Pty Limited v Council of the City of Sydney [2009] NSWLEC 1305).

19 In addition, for example, in Rifon Pty Ltd v Sydney City Council [2006] NSWLEC 778, Hussey C set out potentially useful material from an English study, the Ealing Town Centre - Case Study. This material was set out at [54] to [56]. The aims of the study were described as:

to determine, in the local context, how Ealing might measure 'cumulative impact' and determine what particular indicators of 'saturation point' or carrying capacity are meaningful, in terms of managing the negative impacts of the late night economy.

20 However, the circumstances of Rifon did not lead to development of a general framework for cumulative impact assessments of multiple potentially impacting licensed premises.

21 The frequency of matters now coming before the Court in merit review appeals concerning licensed premises points toward the desirability of adoption of a planning principle for assessing the cumulative effect of multiple licensed premises. However, these proceedings have also not been appropriate, in my view, to propound an expanded planning principle building on Vinson as there was insufficient relevant evidence to provide a broad enough foundation for such consideration.

22 As a consequence, I turn to consider the guidance provided by Vinson and to supplement it for this application made by the Hotel with additional steps I have considered necessary for the consideration of this intensification application when there are multiple licensed premises (as is the case here) that contribute to a cumulative social impact on the amenity of the nearby residences.

23 The information to identify relevant factors to assist determine whether or not there is a cumulative effect on this residential community by the behaviour of patrons from multiple licensed premises in the vicinity come from a variety of sources.

24 In making this assessment, I have considered:

• What other licensed premises are in proximity to the premises for which this application has made?
• The other relevant significant venue at which alcohol may be purchased and consumed, the Sydney Football Stadium/Cricket Ground complex, whose patrons may, after the conclusion of any event they have attended and at which they have consumed alcohol may be attracted to post-event attendance at licensed premises in this locality or to move through the locality as part of crowd dispersal after the completion of any event?

25 Having done so, I consider it then necessary to take account of:

• What is the trading account pattern of the premises and of other premises that are in the locality (to identify differences in those trading patterns, particularly differences in closing times)?
• In light of the trading pattern of all licensed premises in the locality, is it 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?

26 The next step I have taken is to identify the totality of the anti-social behaviour that is impacting on the local residential community. In identifying these impacts, I consider it appropriate to consider, on an accumulated basis, the factors set out to assist in the first step assessment in Vinson namely:

• 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?

27 Before then proceeding to further steps akin to those set out in Vinson , I consider it necessary to determine:

• Is there credible evidence of specific instances of any anti-social 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?

28 In the context of these multiple licensed premises, I then consider appropriate to consider modified versions of the remaining steps in Vinson. These are set out below:

• What measures are in place to address the aggregate anti-social 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 granting approval in whole or in part?
• To what extent, if any, do these require co-operation of other licensed premises in the vicinity and is there any evidence that this will be given?

29 Consideration of all of these elements leads, finally, to consideration of the two critical and determinative propositions in this framework. These are:

• 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 these impacts acceptable and should the increase in patron numbers be approved with or without a trial period?

30 There are also a number of broad comments to be made, at this initial stage, about the approach to considering the various questions that have been posed in these preliminary paragraphs concerning the structure of the approach to be taken to this application. These are set out below before I turn to the detail of this application and its consideration within that framework.

31 When making an assessment of attribution, it is necessary to be careful to ensure that there is a proper factual basis for such attribution. In this regard, police reports concerning incidents not only provide information about premises (where incidents occur at or in the vicinity of those premises) but also provide information about the location at which persons involved in such incidents acknowledge was the venue where they consumed their last alcoholic drink.

32 As was observed in Vinson , evidence of anti-social behaviour at or linked to the premises or in the relevant residential area 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.

33 With respect to evidence from local residents, unless there is a specific basis upon which to accept an identification of an incident's association with a particular licensed premises (such as direct observation of persons entering or leaving such premises or a rowdy behaviour in which the name of the premises is explicitly identified as a venue to or from which those so behaving are travelling), attribution should be approached with caution unless there are other specific identifiers that provide assistance.

34 Other specific identifiers may arise from ordinary time related factors such as the hour of the night or early morning when the behaviour occurs coupled with the direction of travel of those so behaving and relevant closing times of the licensed premises in the vicinity. Less frequently, other indicators such as specific dress associated with a particular sporting team's colours may also be relevant as may the singing of particular theme songs as part of rowdy behaviour.

35 All of these matters must be weighed against the extent to which any intensification by increased patron numbers for the Hotel would be likely to increase the aggregated level of anti-social behaviour from patrons of all relevant licensed premises impacting on amenity in this immediately relevant residential area.

36 The inevitability of anti-social behaviour of patrons of existing late night trading venues in the locality at the Hotel's present numbers provides no basis upon which to permit any intensification unless the present aggregated level of impact is acceptable or steps are available to be taken (and will be taken) by the Hotel to reduce existing aggregated impacts so that the resultant aggregated impact, after any approval for intensification, is acceptable overall.

37 Finally, if any extension of numbers for the Hotel is likely to be acceptable but only subject to additional measures to reduce existing anti-social behaviour, a trial period may be appropriate to test those measures.

Merit assessment of the first issue

38 In my opinion, it is appropriate that I consider first the issue of antisocial behaviour in the vicinity of the Hotel. I do so because I consider that if the application fails on this ground - as I consider it must for the reasons that are set out in the analysis below - it is unnecessary to consider the other issues.

Other licensed premises in the vicinity

39 During the course of the site inspection, in addition to observing the interior of the premises and its immediate locality at the intersections of Oxford, William and Victoria Streets, we also walked to the vicinity of the premises on the northern side of Oxford Street and part of the area to the south of Oxford Street in the vicinity of the premises. During the course of this process, I heard evidence, informally, at a number of relevant locations from objectors to the proposal.

40 Also observed during the course of this neighbourhood inspection were the exterior of three other licensed premises in the vicinity. These comprised the London Tavern, to the north of the Hotel along William Street, a little over two blocks to the north; the Grand National Hotel, on the corner of Underwood and Elizabeth Streets, some 250 or so metres to the north-east of the Hotel as the crow flies; and the Paddington Arms Hotel, 150 m or so to the east on Oxford Street from the Hotel. Although it is not something that was observed during the course of this walk around, it is appropriate to note that there are other licensed premises in the vicinity such as the Imperial Hotel, some 300 m or so to the west along Oxford Street.

Other impacting alcohol providing venues

41 During the course of the resident evidence on the southern side of Oxford Street, I heard descriptions of the conduct of patrons who had attended events at the Sydney Football Stadium/Cricket Ground complex who walked from those activities in a fashion that led them to Oxford Street in the vicinity of the Hotel. The behaviour of these patrons of the sporting venues was described to me by the residents in terms that made it obvious that those patrons of those venues and their behaviour were affected by alcohol.

Trading patterns of licensed premises in the vicinity

42 Although I did not have evidence of the trading hours of the Grand National or the Paddington Arms, I do have evidence of the trading patterns of the London Tavern. This evidence established that the Hotel traded or was licensed to trade at hours that had later required closing times than those observed by the London Tavern.

Movement through the nearby residential area

43 As part of the applicant's case, a limited study was undertaken of pedestrian movements along William Street. This analysis was incorporated in the statement of evidence provided by the applicants parking and traffic expert, Mr. Masson. The study was undertaken on a single set of consecutive nights, these being Thursday, Friday and Saturday, 17 to 19 February 2011.

44 The pedestrian survey showed a pattern of movements relevantly including, on the Friday and Saturday nights in the survey, significant numbers of persons moving from north to south along William Street at times consistent with the leading up to and after the cessation of trading of the London Tavern. These numbers are consistent with at least a proportion of those patrons of the London Tavern undertaking that movement along William Street in order to access the Hotel that is the subject of this application.

45 There was also oral evidence from objectors of significant volumes of alcohol affected pedestrian traffic from the Sydney Football Stadium/Cricket Ground complex toward Oxford Street in the vicinity of the premises. The limited nature of the pedestrian count undertaken by Mr. Masson did not include any account on the southern side of Oxford Street although it did include an element of count of those crossing Oxford Street, in a southerly direction, from the general area of the intersection of Oxford and William Streets where the Hotel is located. Although these pedestrian movements take place, I accept, the lack of any quantified data as to time and numbers provides little real assistance in anything other than a broad fashion in my consideration of impacts in the locality.

Relative closing times

46 As earlier noted, the extent to which I have evidence of the trading patterns or other licensed premises in the vicinity is limited to knowledge of the trading hours of the London Tavern. This evidence is that those premises trade, relevantly in a late-night and peak demand sense, to an earlier time of the evening than is the trading pattern for the Hotel.

Patron demographics

47 Although there is evidence from Mr. Masson's pedestrian count that lead to the conclusion that some proportion of the patrons of the London Tavern should be assumed to attend at the Hotel after the closure of the London Tavern, the more general evidence I have as to the nature of the activities at the two premises would suggest to me that, because of the range of events offered at the London Tavern that are not provided for patrons at the Hotel, there is likely to be a difference in the broad socio-demographic composition of the patrons of the two premises (although Mr. Masson's evidence demonstrates that it is not exclusively so). This, in this case, does not appear to have any significance.

Adverse impacts from all relevant licensed premises

48 A starting point for this consideration is a passage in written evidence from Mr. Sanders concerning the occurrence of such behaviour at this general location - this being at a distance somewhat but not completely removed from the entertainment strip of Oxford Street and from the Sydney Football Stadium/Cricket Ground complex slightly less a distance removed to the south. In his written evidence, Mr. Sanders wrote, at paragraphs 3.7 to 3.9, as follows:

Of relevance to the first step of that assessment is whether there is any documentation which demonstrates adverse amenity impacts. The only information provided in this regard is that provided the Police submission. As stated above there are no documented complaints or the like or relevant recorded complaints that I am aware of that would assist this assessment. On first review of the Police incidents do not consider them to have significant weight to support the Police objection. Those incidents listed, for the most part, are relatively minor, such as blocked footpaths and public urination. For an inner-city location, within a business zoning within walking distance to the Oxford Street/Darlinghurst entertainment district the level of impact is considered reasonable given those locality considerations and in a general sense.

In light of the Applicant's reply to those incidents a proper assessment reveals that the incidents have been handled with diligence in accordance with Hotel policies and procedures and that issues relating to patrons are being well managed.

Based on the above, that being the absence of complaint and lack of adverse amenity impact and my own observations, I conclude that the behaviour of patrons in the immediate vicinity of the Hotel is not having any demonstrable adverse amenity impact.

49 During the course of his oral evidence, Mr. Sanders adhered to this position.

50 It is appropriate that I make the following observations concerning the material extracted from Mr. Sanders written evidence as it frames the discussion that follows concerning unacceptable street and/or other behaviours in the vicinity of the Hotel; linkage of elements of those behaviours to the Hotel; the inability to eliminate entirely unacceptable elements of those behaviours; and inability of the applicant to demonstrate that that an increase in patron numbers will not be followed by the inevitability of increases in fundamentally unacceptable elements of those behaviours.

51 I accept that, as a consequence of the existence of licensed premises located in close proximity to residential areas, there will be incidents of antisocial behaviour that are not capable of being eliminated no matter how good the management of the premises might be. Indeed, in the present instance, for reasons that I do not need to set out in detail given the conclusion I have reached for the reasons later set out, I am generally satisfied that, in recent times, the management of the Hotel has been acceptable and what might be described, in broad, as "good management". This comment, of necessity, is confined to the internal elements of the premises and what has been accepted as the reasonable sphere of external influence of the Hotel's security personnel.

52 Incidents of antisocial behaviour that inevitably will arise will do so as a consequence of a number of factors including:

• The limited range of powers that are available to security staff employed by such premises;
• The comparatively limited range, geographically, within which it is reasonable to expect the security guards for such a service to patrol; and
• Antisocial behaviour by patrons of late-night trading licensed premises of a generally rowdy, sleep disturbing nature and/or antisocial behaviours such as urination by such patrons on or in private residential premises is, of necessity, accorded a low priority for scarce police resources when compared to other demands placed on those already significantly burdened police officers.

53 As consequence of that, for existing late night trading licensed premises, where there is a close interface with residential areas, there is an inevitability of a degree of antisocial behaviour that has an impact on that local residential community.

54 In addition, here, as Mr. Sanders said in his evidence, it may be reasonable to assume that some of that antisocial behaviour may come from patrons from other licensed premises that are not in the immediate vicinity in any relevant sense (in this case instanced by Mr. Sanders as being the western entertainment late-night trading premises in the Oxford Street strip) walking into that residential area or, as was discussed during the course of the evidence given by a number of residents, from patrons who have attended events at the Sydney Football Stadium/Cricket Ground complex.

55 In the present instance, it is clear that there is a combination of sources for the inevitable but unreasonable antisocial behavioural impact on the surrounding residential community. The evidence in support of this comes from a variety of sources.

• First, Mr. Sanders's evidence, which I accept, is that it is reasonable to expect that some of that impact will be derived from patrons of the Oxford Street entertainment precinct coming to this locality;
• Second, it is obvious from the police evidence and the pedestrian movement of analysis undertaken by Mr. Masson. These movements include people who have been patrons of licensed premises, other than the Paddington Inn, including premises such as the Sydney football Stadium or the Sydney Cricket ground where consumption of alcohol has taken place by those patrons. It also encompasses other licensed premises such as the London Tavern or the Grand National Hotel in much greater immediate proximity to the location of the Paddington Inn; and
• Third, an element to in this mix of human behavioural dynamics, other patrons of the Paddington Inn itself.

56 In broad terms, the antisocial behaviour that is complained of by the residents in the vicinity comprises:

• street and general rowdiness leading to sleep disturbance;
• smashing of bottles and drinking glasses in the gutters and in the front (typically small) forecourt areas of this predominantly terraced house residential area; and
• finally, occurrences of public urination (and, occasionally, defecation) in the street and on private residential premises.

57 The evidence in the written objections to the proposal; incidents documented in the police reports; and in the evidence given orally by residents during the course of the site inspection or indeed to the inevitable conclusion that such behaviour is of a widespread and regular occurrence. It is unnecessary, for this broad discussion at this stage of my analysis, to set out or that material in considerable detail. It is sufficient, for these purposes, to note that there is a consistent thematic reporting by the residents of this type of antisocial behaviour and there is no suggestion that the various descriptions I have been provided in the written objections from the residents is not representative of that which actually occurs.

58 Mr. Sanders did not dispute the existence of such behaviour nor was any serious attack made on the resident evidence concerning the existence of those behaviours - merely on the extent to which they might be able to be attributed to patrons of the Paddington Inn.

59 Although a deal of the resident evidence attributed that behaviour to the Paddington Inn, I am satisfied that it is entirely inappropriate to draw that conclusion. The behaviour must, I am satisfied, come from some mix of the sources from which human movement late in the evening or in the early hours of the morning must have been drawn. Those are the various immediate and further afield sources earlier identified.

60 Some level of that behaviour, perhaps, even, the level described by the residents or reflected in the police reports is an inevitable consequence of the geography of not merely the immediate locality and its licensed premises interfacing with residential areas but also from the proximity of the major attractors of the entertainment precinct in Oxford Street; the Sydney football Stadium and the Sydney Cricket ground.

61 However, inevitabilities and, to adopt what I understood to be the underlying sentiment expressed by Mr. Sanders if I am correct in this assumption, the reasonableness of acknowledging that inevitability, do not in any way go to render acceptable, in a social impact sense, that behaviour and the adverse impacts it has on the lives of the citizens who are forced to endure it in their homes.

Adverse impacts attributable to the Paddington Inn

62 In undertaking this analysis, I do not consider it appropriate to draw the inference that, because the Paddington Inn is licence premises trading until the late evening and that such antisocial behaviour is exhibited by patrons of such premises at times not inconsistent with the trading hours of these premises that all elements of that behaviour must inevitably have been caused by patrons from the Paddington Inn. This approach is consistent with the approach I have taken in earlier proceedings (see Borg Architects earlier cited).

63 There are three separate elements to the antisocial behaviour as earlier set out.

64 With respect to smashed bottles and glasses, I have the uncontradicted evidence of the residents together with my own observation of smashed glass in the garden during the course of the site inspection to be satisfied that the complaints of this nature are valid.

65 However, the only specific complaint capable of investigation as to the source of the smashed or discarded bottles or glasses is the evidence of Ms O'Neill, a local resident who gave evidence on site and in court. Her description of the glasses that she had found abandoned on her front launch was of glassware of varying sizes with a multi-facetted pattern around the lower part of the glass. She produced a glass from the London to demonstrate that this abandoned glassware was not consistent with that used at those premises, the London Tavern being closer to her home than the Paddington Inn.

66 Mr. Clay, barrister for the applicant, tendered evidence that demonstrated that the glassware used by the Paddington Inn was not of a design consistent with the design described by Ms O'Neill. I was also provided photographic evidence that the Grand National Hotel glassware was, in fact, consistent with the glasses described by Ms O'Neill. As a consequence, her evidence cannot provide any direct linkage with the Hotel on this point.

67 As another consequence, I am not able to be satisfied, merely because of the existence of a liquor selling facility at the Paddington Inn selling drinks package in glass bottles, that the shattered glassware in the street can be attributed to sales from the Paddington Inn with any degree of certainty to permit any adverse conclusion to be drawn against those premises. As a further consequence, I disregard, in its entirety, the issue of smashed glass in the streetscape or discarded glassware as being capable of specifically contributing to the refusal of the application for increased patron numbers at the Paddington Inn but it does provide an element for my consideration of the general overall behavioural landscape in the vicinity.

68 I turn, now, to the question of rowdy behaviour and street noise.

69 First, it is to be observed that there is widespread complaint by the objectors about such behaviour that has led me to the conclusion that such incidents are not isolated but occur on a regular occurrence, particularly on weekend evenings.

70 I do have specific evidence from two witnesses asserting that they have observed late night noisy behaviour that they attribute to patrons going to or coming from the Hotel.

71 First, such evidence was given by Mr Grigg who resides in premises in William Street. He conducts a business at the ground level and lives at the upper level. He described having had to move his bedroom from the front of his premises to the rear because of the increase in street, particularly on Thursday and Friday and Saturday evenings. His evidence was of specifically observing persons who made this sleep disturbing noise going into the hotel and being persons who had travelled from the London Tavern to do so. Although tested by cross-examination during the course of the informal site evidence, his evidence was clear, concise and uncontradicted. He did not resile from the evidence he gave during the course of his brief cross-examination. I accept his evidence in its entirety.

72 Second, Ms O'Neill whose evidence concerning glassware has been earlier considered by me gave evidence on this point. She lives in William Street, to the north of the London Tavern. She described, during the course of the informal evidence given during the site inspection and locality walk around, an incident of observing up to 200 people coming down William Street from Oxford Street.

73 As I understood her evidence, large groups such as that which she was describing were not considered by her to be an unusual occurrence. She described the rowdiness of their behaviour and specifically described the place from which they had come as being the Paddington Inn.

74 I am unable to give significant weight to this evidence, in my view. I have reached this conclusion not because I do not accept that they may be large groups of people behaving in such a fashion and that there may be (indeed are likely to be) alcohol fuelled drivers for such behaviour.

75 The reservations that I have that caused me to set aside her evidence are geographically related. First, I do not consider I have a satisfactory basis upon which I could discount, entirely, a significant possibility that such groups of persons, at least to some extent, could have come from the London Tavern. Second, more significantly, between Ms O'Neill's residence and the Paddington Inn, there is a bend in the road that would make it difficult, if not impossible, particularly late at night, to observe a precise origin for such groups of people.

76 The final aspect of the detail of complaints of antisocial behaviour in the neighbourhood concern public vomiting, urination and defecation. There are a number of elements of evidence in the objections from local residents on this topic. First, one local resident, at pages 48 and specifically 49 of Exhibit 6, says:

Patrons leaving the hotel vomiting on local footpath, urinating in public and causing a general nuisance all having a negative impact on residential amenity.

77 Although this is uncontradicted and the author was not required for cross examination, I am not prepared to accept this as specific evidence of such behaviour being occasioned by patrons of the Hotel. It is not precise as to time or date or as to how the author observed such activities in a fashion that would enable her to be certain that those behaving in such a fashion were, in fact, patrons of the Hotel rather than from other licensed premises in the vicinity. However, I certainly do accept this as uncontradicted and reliable evidence of the existence of such behaviours, in a general sense, arising from the existence of alcohol fuelled behaviours.

78 Second, at pages 65 and (specifically) 66 of Exhibit 6, another local resident makes assertions concerning urination in the laneway where this behaviour is, at least in part, inferentially ascribed, because of proximity to the Paddington Inn, to patrons of the Hotel. For similar reasons to that described immediately prior, I do not accept that this can establish a direct linkage but I do accept it is uncontradicted and reliable evidence of such behaviours in a general sense. It is also appropriate that I note that, in the exhibit to which I have referred, there are eight other citations of public urination by persons who might reasonably be concluded to be patrons of licensed premises in this locality or, if not such patrons, to be alcohol fuelled in this behaviour.

79 There are, however, from the bundle of police reports that are in evidence, two specific incidents about which I have evidence of public urination by patrons of the Paddington Inn.

80 First, on 2 August 2009, plainclothes police observed a person walking to the doorway entry to a block of residential units and not come out. The police report describes the officers following this person into the doorway entrance in witnessing him urinating on the wall within the entrance area of these residential premises. The police report says:

When confronted by police to stop urinating the POI [ person of interest ] said no, let me finish. After further requests the POI turned around to police.

.................................

The POI stated he'd been drinking all night at the Paddington Inn, Oxford Street, Paddington and was leaving to catch a taxi home with friends.

81 The second incident occurred on 15 August 2009. On this occasion, the incident involved uniform police working outside the Paddington Inn. While the police were speaking with security guards at the front of the Hotel, the police observed a number of persons walking out of the Hotel. Shortly after, police observed one of these persons urinating on the wall outside a local hardware store. The police report says:

Upon questioning the male in regards to urinating on the wall the accused stated "How have I offended you, I didn't do anything, your an idiot."

82 Although both of the above incidents took place in August 2009, in my view that does not render them irrelevant because of their age. The circumstances are such, I am satisfied, that, because police are unable to devote, for understandable policing demand and resourcing constraints, any significant effort to behaviours of this nature, observations of these incidents are merely serendipitously coincidental and are relevant in the present context of demonstrating that it is reasonable to assume that elements, from within a broader incidence of such behaviour in this locality, can be attributed to patrons from the Paddington Inn.

83 I was also taken, during the course of the site inspection, to a laneway running along the rear of properties fronting William Street. The laneway is a pedestrian thoroughfare only and, on the residents' evidence and from observation of discarded, used toilet paper during the course of the site inspection, it is used as an outdoor defecation facility. It is likely (indeed almost certainly) that these unsatisfactory behaviours are alcohol consumption arising behaviours, but there is no basis upon which I could conclude any attribution to patrons of the Paddington Inn. I merely accept that they are part of the general pattern of unacceptable alcohol fuelled behaviour in the locality.

Measures to address adverse impacts

Their documentation

Their success

Co-operation with other premises

84 These four topics, in my view, can be bundled together for the present analysis.

85 In general terms, I am satisfied from the overall tenor of the police reports that, particularly in recent times, there has been a broad genuine and reasonably adequate endeavour by the management of the Hotel to address adverse behavioural problems that arise in or in the immediate vicinity of the Hotel. Whilst there may be some defects shown on the approach that has been taken, I am satisfied that they would be able to be addressed by revisions to the plan of management as discussed during the course of proceedings.

86 However, as was also discussed during the course of the evidence, the powers of security officers employed by the Hotel or contracted to the Hotel are limited. In addition, the geographic area of effectiveness of a visible security presence, even in the modestly expanded terms envisaged during the course of proceedings, cannot guarantee the elimination of antisocial behaviour.

87 Although I do not understand that I had any evidence concerning cooperative security endeavours between the licensed premises in the vicinity and the Hotel, given the limited geographic range that would be reasonable to expect each premises security to cover, such arrangements would have, at the very best for an arrangement between the London Tavern and the hotel, limited benefits, I would expect.

88 The Grand National, in my view, is sufficiently far removed that it is unlikely that any cooperative arrangement would provide any significant benefit (if any benefit at all).

The likelihood of added impacts from the Paddington Inn

89 The crux of that which I am obliged to consider is whether or not I should conclude that, if I 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.

90 Although I really appreciate the difficulties of suggesting that a party should be required to prove a negative, I consider that I should approach this issue on a precautionary basis.

91 The consequence of this is, whether cast as a double negative that I cannot be satisfied that it will not occur or as a positive finding that I am satisfied that it will occur, a precautionary approach, in my opinion, has me approaching the matter on the basis that it is sufficiently likely, on the evidence that I have that:

rowdy, noisy street behaviour by patrons of the Paddington Inn would increase if patron numbers were permitted to increase and that this would adversely impact residents in the vicinity; and

incidents of public urination, including urination on or into private residential property would increase if patron numbers were permitted to increase and that such behaviour, for the reasons discussed below, is entirely unacceptable.

92 With respect to the first proposition, the uncontradicted evidence of Mr Griggs provides an appropriate contemporary evidentiary basis for such a conclusion.

93 With respect to the second proposition, the fact that such behaviours, on the documented police reports available to me, had not only occurred in the immediate vicinity of police but in the immediate vicinity of uniformed police, leads me to conclude that those alcohol fuelled males suffering some urgency of bladder pressure will pay no regard whatsoever to the surrounding circumstances when they feel the need to believe themselves.

The acceptability of the resultant position

94 There is one matter arising out of the extract from Mr. Sanders evidence set out earlier that warrants an immediate evaluative comment from me. This concerns the question of public urination. Whilst it may well be that public urination - on foot paths; in the gutters; in the middle of the road way; on to car wheels; or into other public areas such as parks and the like - may be regarded and as tolerable or acceptable (a matter about which I express no opinion in these proceedings as it is unnecessary for me to do so in these circumstances), a different position applies, in my opinion, to antisocial behaviour where that involves urination in or onto private property, where that property is private residential property and where that urination takes place at locations within the property where residents are unable to avoid the impact of such behaviour. The different position that applies, in my opinion, to such behaviour under this latter range of circumstances concerning residential property is that such behaviour can never be regarded as acceptable or to be tolerated.

95 When questioned during his oral evidence on this point, Mr. Sanders agreed that the incident of urination in the hallway of a residential flat building, dealt with in more detail earlier from the police report, could not be regarded as either acceptable or to be tolerated.

96 There is, however, in my opinion, a distinct and stark difference between the reasonableness of expecting/inevitability that such behaviour will occur and the reasonableness of that behaviour itself. The inevitability of the occurrence of that behaviour does not render the behaviour itself reasonable or acceptable - merely that it remains inevitable.

Conclusion on the first issue

97 The unacceptable antisocial behaviour is, on the uncontested evidence, of sufficient regularity and intensity, in my opinion, that any increase in this, save for some increase that might be regarded as being so trifling as to be unobservable in its impact on the residents, should not be permitted.

98 I have concluded that the present level of antisocial behaviour in the streets in the vicinity 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. Although the occurrence of these behaviours is an inevitable consequence of these existing permitted developments of a variety of types and it is thus, as was the opinion of Mr. Sanders reasonable to expect that such behaviour would occur, the reasonableness of the expectation (indeed the inevitability) of the behaviour, does not, in any fashion, render the behaviour itself reasonable or acceptable.

99 In this instance, although the vast majority of this unacceptably impacting behaviour is not able to be and it will not be attributed by me to patrons of the Paddington Inn, there are specific and credible instances in the evidence where such unacceptable behaviour can and should be attributed to patrons of the Paddington Inn.

100 Any increase in any of the unacceptable antisocial behaviours inflicted on the 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).

101 In the present instance, there is no credible basis upon which I could conclude that the present demonstrated unacceptable behaviours arising from patrons of the Paddington Inn would not be increased beyond the imperceptible if the permitted numbers of persons on the premises were to be doubled or more as sought by the applicant.

102 As a consequence, it is not appropriate to approve any increase in the maximum permitted number of persons on the premises because of the probability, indeed inevitability, 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 in the vicinity.

103 In making this finding and in drawing this conclusion, I am expressly not making any adverse finding concerning the present management of the Paddington Inn. Indeed, the incident earlier described where a patron of the premises publicly urinated in front of uniformed police officers provides a stark example of the fact that such behaviour is not only uncontrolled by the patron but is uncontrollable by any reasonable external intervention whether by the management of the premises or by the public authorities.

104 Finally, it is clear and, indeed, also inevitable that, just as the police are presently not able to provide sufficient staffing to prevent the present levels of unacceptable amenity impact on the residents, there is not the remotest prospect that, with any increased patron numbers (if approved) for the premises, there would be able to be any increased police response to the low level antisocial neighbourhood impacting behaviours and, indeed, given the incident cited immediately above, such police presence might well be ineffectual even if it were to be available.

105 As a consequence of the conclusions I have reached concerning the specific impact and likely increase of that impact on residents that would arise if patron numbers were permitted to be increased at the Paddington Inn, it is not appropriate to approve such an increase and the appeal must therefore be dismissed.

The other issues

106 As a consequence of the conclusion that I have reached on the fundamental issue of acceptability or otherwise of likely future impacts on residents in the immediate vicinity of the hotel, is unnecessary for me to consider the other matters of behavioural significance put in contention by the council.

107 I have adopted this position because I am satisfied there are no circumstances under which the first and most significant area of concern is capable of being addressed and eliminated.

108 The resident concerns about the location of the doorway similarly fall away.

Approval of the works

109 Although Mr Clay for the applicant put the proposition to me, as was discussed during the course of the proceedings, that it was not necessary to treat the proposed internal alterations to the premises as being linked to patron numbers, I regret that I am unable to accept this proposition.

110 At the present time, on the evidence that is available to me, from time to time, there have been instances when more patrons have been on the premises than are permitted to be on the premises and that these succeed Mrs head, in some instances been by significant numbers.

111 The police evidence was that, on such occasions, the internal spatial dynamics caused the premises to be somewhat cramped or crowded.

112 Permitting the additional space to be constructed as proposed without permitting the increased patron numbers, would, in my opinion, simply make it more attractive for management to adopt a permissive attitude to enforcement of the existing patron numbers and that this is clearly an undesirable circumstance.

113 As a consequence, I am satisfied that the increase in the internal facilities of the premises are so closely inter-linked with the number of persons likely to be on the premises, whether permitted, in a regulatory sense, or simply permitted in an inadequate management sense, that the alterations to the premises should also be refused.

Orders

114 As a consequence, the orders of the Court are:

1. The appeal is dismissed;

2. Development Application 512/2009 for alterations to and an increase of the permitted patron numbers at the Paddington Inn at Oxford Street, Paddington is determined by the refusal of development consent; and

3. The exhibits, other than Exhibits 7 and B, are returned.

Tim Moore

Senior Commissioner

Decision last updated: 21 July 2011