Update: The Gaff - Land & Environment Court Appeal - Patron increase REFUSED / Expansion APPROVED
As previously reported on this site, the NSW Land & Environment Court recently upheld the City of Sydney's refusal of an increase in patron numbers at The Gaff nightclub. Evidence presented by NSW Police and local residents led the Commissioner to determine that the locality already suffered from unacceptable levels of antisocial behaviour and therefore any increase in patron numbers would also be unacceptable.
At a subsequent Hearing, the Commissioner focused primarily on heritage and Plan of Management issues and on 9/12/09 determined that the expansion of The Gaff into the adjacent premises at 10-14 Oxford Square (minus the requested increase in patronage) would be approved.
While many local residents, community and business groups would justifiably be disappointed that yet more street frontage (in this case a former medical centre) in the Oxford Street area is to be converted into licensed premises uses, it is important to recognise the potential impact of the refusal of the increase in patron numbers. This case was potentially one of the first instances of the Land & Environment Court recognising that the locality was already suffering from unacceptable impacts caused by antisocial behaviour from the patrons of the many surrounding licensed premises. This may set a precedent for future cases relating to applications from new or existing licensed premises.
Both the NSW Police and local residents played a pivotal role in providing sufficient evidence to help the Commissioner reach this conclusion. The diary and log entries kept by residents relating to various instances of antisocial behaviour, particularly those instances that could be linked to the venue in question (although all evidence helped) ensured that the Commissioner had no doubt in regards to the impacts on the locality.
Summary of key findings from 16/9/09 Judgement
The following is an extract of some of the Commissioner's key findings from the first round of Land & Environment Court Hearings which related to the requested increase in patron numbers:
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76 With regard to those objections that are of a general nature and do not, in any individually satisfactory sense, identify behaviour that could be attributed, specifically, to patrons of The Gaff, these merely demonstrate that there is a consistent and widespread level of unacceptable antisocial behaviour in the locality during late evenings and night hours.
- 77 This background level of such behaviour, however, is relevant as establishing that there is presently an unacceptable level of antisocial street behaviour in this locality. The consequence, as there is already an unacceptable level of such behaviour, is that any increase in the level of such behaviour is also unacceptable.
- 99 Had the question of behaviour within the sphere of influence been the only issue, it is possible that some trial at an increased numerical level would have been considered. However, I have not turned my mind to whether or not such a position would be appropriate because I am satisfied that the behaviour of patrons of The Gaff outside that sphere of influence is unacceptable and would be made worse if patron numbers were increased.
- 102 It is not necessary that I quantify the extent of the increase – merely that there is sufficient probability that there will be an increase of some unquantified nature and that this will also be an increase of some unqualified (but inevitably unacceptable) nature thus rendering it inappropriate to permit any increase in patron numbers. Such a position is on all fours with the approach of the two DCPs discussed earlier.
- 103 It is clear from the evidence that there is already an existing range of unacceptable antisocial behaviour, well outside any possible sphere of influence of any plan of management for The Gaff, inflicted on residents in the locality. It is also clear, from the evidence, that not all (nor, indeed, a majority) of that conduct can be directly attributable to putative or actual patrons of The Gaff.
- 106 If there is already an unacceptable impact on the amenity of residents in the locality outside any rational area of influence of the management of The Gaff, it would require a decision maker of considerable gullibility or incredulity to be prepared to accept that a 25% increase in the number of permitted patrons would not lead, inevitably and irresistibly, to the conclusion that there would be at least some increase, no matter how small it might be, in the level of antisocial behaviour that would be visited on those already unacceptably impacted by such behaviour...
Summary of key findings from 9/12/09 Judgement
The following is an extract of some of the Commissioner's key findings from the second round of Land & Environment Court Hearings which related to the expansion of the venue into the adjacent building (minus the requested increase in patron numbers):
- 14 Overall, I have concluded that the presentation of the buildings fronting Oxford Square will be altered, necessarily, from their present appearance if the application is to be approved. However, the present appearance of all of the elements of this terrace has already been significantly modified and no longer reflects the original shopfronts. There is to be no adverse impact on the heritage facade of the buildings or on any of the heritage fabric that remains. None of the works of that are involved in the application, to the extent that they interact with the heritage fabric, are irreversible...
- 15 I have therefore concluded that, although there may be some modest visual heritage difference, it is not such as to warrant refusal of the application nor to require amendments to it.
- 22 Although I accept evidence... that there may still be deficiencies in the management processes by the proprietors of The Gaff and that much, if not all, of the improvements that are contained in the new plan of management are ones which the proprietors ought to implement independently whether or not they were mandated to do so by virtue of the conditions of a development consent, there are two significant factors that operate in favour of granting a development consent that incorporates the terms of the plan of management.
- 25 ...a mandated plan of management as a condition of the development consent will run with the land and will bind any successors in title to the present proprietors. Given the antisocial behaviour of the patrons of The Gaff, not merely beyond the 50 m radius (where it is clear, as discussed in my earlier decision, the management and security staff of The Gaff can have no effective influence), there has also been a significant history of antisocial behaviour within that more confined area defined by that 50 m radius from the premises.
- 31 If I am wrong about the heritage impact and there would be some heritage impact that, absent any countervailing benefits, would warrant refusal of the present proposal, I am, nonetheless, satisfied that the benefits to be obtained by incorporating the proposed plan of management in a development consent so as to render it enforceable provides sufficient countervailing public benefit so, when balancing any negative heritage impacts with the public amenity benefits would also render the proposal acceptable on balance.
More information...
You can read the finalised Conditions of Consent for the Gaff expansion. Any breaches of these conditions should be reported.
You can also read the Land & Environment Court's 16/9/09 Judgement and the 9/12/09 Judgement on NSW Caselaw.