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Queensland Judgments
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  • Unreported Judgment

Pimpama Commercial Pty Ltd v Council of the City of Gold Coast (No. 2)

 

[2020] QPEC 48

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Pimpama Commercial Pty Ltd v Council of the City of Gold Coast (No. 2) [2020] QPEC 48

PARTIES:

PIMPAMA COMMERCIAL PTY LTD
(ACN 605 380 363)
(applicant)

v

COUNCIL OF THE CITY OF GOLDCOAST
(respondent)

FILE NO:

3734/2019

DIVISION:

Planning and Environment

PROCEEDING:

Application for a Change of Approval Conditions

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

4 September 2020 (ex-tempore)

DELIVERED AT:

Brisbane

HEARING DATES:

4 September 2020 (substantive hearing on 25, 26, 27 and 28 May 2020)

JUDGE:

R S Jones DCJ

ORDER:

The application is allowed subject to the trading hours being limited to 2 am seven nights of the week.

CATCHWORDS:

PLANNING AND ENVIRONMENT LAW – CHANGE OF APPROVAL CONDITITIONS – TAVERN – where tavern is approved for 12am closure – where application for extension of operating hours to either 2am or 4am – where tavern located in neighbourhood centre at Pimpama – whether the proposed extension of hours is consistent with the role and function of the centre -whether proposed extended operating times would unacceptably impact on amenity- whether there is a community need for the proposed extension of hours – whether the tavern should be open until the same time each night of the week.

COUNSEL:

Mr M Batty for the applicant
Mr J Lyons for the respondent

SOLICITORS:

Minter Ellison, Gold Coast for the applicant
McCullough Robertson for the respondent

HIS HONOUR:  I propose to dispose of this matter on an ex tempore basis and I will just reserve the right to tidy up my reasons before I have them published.  In my substantive reasons handed down on 24June 2020 in Pimpama Commercial Proprietary Limited v The City of the Gold Coast [2020] QPEC 33 at paragraph 101 I made the following observations:

While I have found that there is a community need for trading hours up to 2 am on Friday and Saturday and likely Thursday nights, it appears to me that the need or demand for a place to socialise and interact up to 2 am would in all probability drop away dramatically on Sunday night through to Wednesday night.  However, in the way the respective cases were advanced before me, there was no suggestion that I could or should make a distinction between trading hours for different nights.  In those circumstances, rather than make final orders allowing trading up to 2 am every night of the week, I will publish my reasons and, if necessary, hear further from the parties.

Following that, the parties unsurprisingly advised that they wished to be heard both in writing and orally and on the 3rd of September 2020 I received written submissions from the parties and on today’s date, being 4September 2020, I heard oral submissions.  The primary position of the applicant is that I should conclude that the opening hours of the tavern should be extended to 2am seven nights a week.  On the other hand, the council contends that the application should be dismissed in its entirety. 

The council’s fallback position and, indeed, the applicant’s fall-back position is in the event that I were not to dismiss the application or find that trading to 2am on seven nights a week should occur, I ought then limit trading hours to 2am Thursdays, Fridays and Saturdays and otherwise 12am.  The council also suggested that hours might be limited to 2am on Friday and Saturday nights only. 

On behalf of the applicant, it was initially contended that to make different closing times for different nights of the week might involve an error in law.  However, in paragraph 8 of its reply submissions it accepted that the Court did have the power to approve the extension of trading hours for only a limited number of days. However, MrBatty who appeared for the applicant said that to do so in the circumstances of this application might involve an error of principle in that in respect of community need, the test is a qualitative one and not, to use MrBatty’s words, a numbers game. 

In paragraph 10 of the written submissions on behalf of the council is said what it considered to be the issues in dispute.  Thereafter, the council made a number of submissions in paragraphs 11 to 20 identifying, in effect, three reasons why the application ought be dismissed. First, that despite the best efforts of the applicant, one could not rule out random outbreaks of antisocial conduct even on the quieter nights.  In that regard attention was drawn to my substantive reasons for judgment at paragraphs 25 and 26, but I do not see any need to repeat them at this stage of the proceeding. 

The second matter was that the community needs and aspirations were always a matter of significance and played a centre role in the substantive proceeding.  The third matter raised was directly associated with the second, namely that having regard to the importance of this aspect of the case, it was addressed by no less than four expert witnesses, namely, two town planners and two social planners and, having regard to those matters, to paraphrase the council’s position, even with all of that evidence, the applicant has not been able to establish on the balance of probabilities that operating hours to 2am seven days a week would be consistent with the community’s needs and aspirations. 

In this context I was taken to the evidence of MsMorrissey in the joint expert report of the town planners, exhibit 5, at paragraphs 5.75 to 5.78.  In that material MsMorrissey made a number of observations particularly to the effect that this community was very much a family community in what MsMorrissey described as being in general a community comprised of family households with young children who are ordinarily sleeping or resting during the late hours of the night and early hours of the morning. 

MsMorrissey also spoke of family friendly values associated with this community and went on to say, among other things:

I find it difficult to understand how community need for the extended hours of operation can be fairly established until such time as the tavern is operational and the level of trade can be measured.

MrLyons who appeared for the council took up two of those matters in particular. First, that during the weeknights it is more likely than not that people would be working and, therefore, sleep would be more important.  As a matter of common sense that could be readily accepted.  Also, in the council’s submission after the tavern had been operating for a period of time that would provide the best evidence as to what the real social and community ramifications might be. 

In that context, in paragraph 8 of the council’s written submissions it was said:

The benefits of assessing an extension request once the tavern is actually operating include that it would enable the council to consider the actual impacts of the use based upon (a) actual patron numbers as opposed to estimates about patron numbers, (b) actual patron behaviour (which can be unpredictable when alcohol is involved), and (c) input from the community based upon behaviour they have witnessed. 

In the circumstances of this proceeding I do not find those submissions particularly persuasive.  The first reason why that is is that I have found that on at least three nights of the week trading up to 2am would be a desirable outcome to meet the community needs and aspirations.  To now revert back to seven days a week trading

to only 12am would defeat that outcome. 

The second matter is that community amenity including health issues and, in that context, alcohol consumption and gambling addictions, were addressed in particular by the social planners, and at least some of those matters were also dealt with by the two town planners.  In that regard in paragraph 87 of my substantive reasons I found:

For the reasons already given I am satisfied that the extension of trading hours from 12 am to 2 am would not result in any unacceptable impacts in the sense of creating any genuine level of non-compliance with the Planning Scheme in respect of residential amenity and/or other social and health issues.

On behalf of the applicant I was also directed to the issues in dispute, which are set out in paragraph 12 of my substantive reasons.  It was submitted on behalf of the applicant that having regard to those issues, there is no reason why relief of the type sought ought not be granted. 

In respect of those issues in dispute and, in particular, the social impacts on amenity and health of the community in respect of the evidence of the noise engineers or mechanical engineers, at paragraphs 36 and 37 I reached the following conclusions where after referring to the decision of Broad v The Brisbane City Council [1986] 2 Qd R 317 at 326, I went on to say that the observation of de Jersey J, as he then was:

...accords with the evidence about the high level of sensitivity of residents to loud noises in the vicinity of their homes.  However, in respect of both those observations two important factors need to be kept in mind.  First, this tavern has been approved.  This is not a dispute about whether on the merits the tavern ought be permitted to be developed.  That decision has already been made.  The only issue is whether the operating hours end at midnight, 2 am or 4 am.  It is also relevant in this context that antisocial behaviour could not be ruled out even with a midnight closure.

On balance, insofar as the negative impacts that might be associated with noise, I am satisfied that with the imposition of appropriate conditions no unacceptable impacts on residential and/or community amenity would arise and that the tavern ought not be prevented from trading beyond midnight for that reason.  However, for reasons that will become apparent, it does not necessarily follow that the trading hours should be extended to 4 am.

In my substantive reasons I concluded that there was no warrant to extend the hours to 4am on any days of the week.  In respect of the matters addressed by the social planners in my reasons for judgment I consider it appropriate to refer to the following paragraphs at 63, 70, 73 and 74 where I said:

Primarily on the evidence of Ms Rolley-Cervenjak and to a lesser extent that of Mr Ovenden, I am also satisfied that there is a sufficient level of community need or demand for a place for members of the community to gather and socialise past midnight.  That said, I am left unpersuaded that extending the closing time to 4 am would provide any meaningful benefit to the community beyond that which would be likely to be achieved by 2 am.  While no alcohol would be served after 2 am, a 4 am closure would be likely to increase the negative risks of impacts occurring past 2 am for no apparent meaningful community benefit.

As has already been stated, I do not consider that there would be any meaningful impacts on amenity caused by the extending trading hours in the usual sense, that is, noise, pollution, visual amenity and traffic, etcetera.  I am also satisfied that there is no reasonable basis for concluding that the extended trading hours at least up until 2 am would have any meaningful impacts on the general health of the community including in respect of gambling.

That there might be an increase in the risk of crime or other antisocial behaviour occurring after midnight.  It is clearly of itself not really to the point.  Regard must be had to the balancing exercise to which I have referred.  When regard is had to the fact that a new police station is to be located 1.5 kilometres from the site and the crime statistics to which I have referred, I prefer the evidence on this issue of Ms Rolley-Cervenjak, which was to the effect that while some increased risk of crime and safety occurring after 12 am could not be ruled out entirely, that risk would not be a significant one. 

On balance I have reached the conclusion that the potential for the incidents of antisocial behaviour to rise by extending the service of alcohol by two hours, at least insofar as the busier nights are concerned, is outweighed by the social benefits of providing a place for members of the community to go and socialise. 

I should point out that the test to which I referred was the balancing test contended for by MrLyons at the substantive hearing of the application, and that is set out at paragraph 14 of the reasons for judgment. Again I do not see any reason or purpose to set them out in full at this stage.  So, insofar as the issues in dispute are concerned, I agree with MrBatty’s submission that they fall squarely in favour of his client’s position and, in reality, the only matter left to be thrashed out were those issues associated with community need in the broader sense for the less busy nights. 

Insofar as my observation about never being able to rule out antisocial behaviour even with the best intentions on the part of the applicant is concerned, that observation has to be read in the context of my findings to which I have referred about there being no unacceptable impacts on amenity or health and, it must be borne in mind that my assessment of those issues was based on what were expected to be the two busiest periods, being Friday and Saturday nights. 

It would not be unreasonable to infer that insofar as there would be a risk of antisocial behaviour occurring simply by reference to the likely number of attendees during the quieter nights, that risk could be expected to be even lower than that I was concerned with when writing the substantive reasons. 

Another matter that I would emphasise, is that to dismiss the application entirely, as contended for by the council, would be, in my view, to deprive the community of the positive benefits that I have found to exist in the light of there being no unacceptable negative impacts on that community.  I would refer here without setting them out to my findings in the reasons for judgment at paragraph 97. 

And again at the risk of repeating myself, I accept what MrBatty said that when my original assessment was made being based on the two busiest nights of the week, one could reasonably expect that in the event that there were antisocial behaviour, it was likely to be less of a problem on the quieter nights.  And again at the risk of repeating myself, as I had observed in the substantive judgment, one can never rule out antisocial behaviour associated with alcohol at any time in the evening, be it 10pm or midnight. 

While on balance this might be described as being a reasonably close run race, I am sufficiently satisfied that the trading hours up until 2am should be extended for the seven days of the week. The reasons for reaching this conclusion being, first, while the extent of social interaction may lessen and even lessen materially on the Sunday nights to Wednesday nights, it seems to me more likely than not that some social interaction would, nonetheless, still occur in the sense spoken about by the social planners and to a lesser extent by the town planners.  As MrBatty correctly pointed out, in looking at community need in respect of matters such as this the assessment should be conducted by reference to a qualitative assessment, not a quantitative assessment. 

Second, probably of significantly lesser weight is that the additional trading hours would result in some additional employment benefits within the community.  I would refer here to paragraphs 56 and 57 of my reasons for judgment.  Third, again a matter of lesser significance is that the trading hours at 2am seven nights a week would, albeit probably in small in numbers, it would obviate or lessen the desire of some patrons who might wish to continue socialising until 2am then travelling from the subject tavern to the other tavern situated not too far away.  In this context I would refer to paragraph 99 of my reasons for judgment. 

Those positive outcomes of the extended trading hours, of course, need to be considered in the light of my findings in respect of there being no unacceptable amenity and/or health impacts associated with the extended trading hours up to 2am.  The extension of the trading hours would – and while this is more of a side issue than a central issue – it would not act or set any unsatisfactory precedent in respect of trading hours within centres.  Here I would refer to paragraph 95 of my reasons for judgment. 

Finally, I should note that I accept MrBatty’s explanation as to why patronage figures for only Friday and Saturday nights were provided during the course of the substantive hearing.  That was not to avoid providing figures for those other nights.  They were chosen because they would be the nights when there would be larger crowds and, therefore, the potential for more noise and other antisocial behaviour. Those figures were then used by the various expert witnesses. 

For these reasons together with my substantive reasons published on 24June 2020, the orders I would be inclined to make would be that the application is allowed subject to the trading hours being limited to 2am seven nights of the week.  However, I will refrain from making final orders until I have heard from the parties about their views about the form of the proposed orders. 

Close

Editorial Notes

  • Published Case Name:

    Pimpama Commercial Pty Ltd v Council of the City of Gold Coast (No. 2)

  • Shortened Case Name:

    Pimpama Commercial Pty Ltd v Council of the City of Gold Coast (No. 2)

  • MNC:

    [2020] QPEC 48

  • Court:

    QPEC

  • Judge(s):

    R S Jones DCJ

  • Date:

    04 Sep 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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