Council’s War on Nightlife fails the test in Court

Councillors routinely reject every application from late-night venues seeking to continue their existing trading hours, often ignoring legal opinion and staff recommendations. These decisions are consistently overturned in the Land and Environment Court because Council’s “shocking” evidence does not stack up.

A series of embarrassing losses has led Council to seek settlements, which means that Judgements are not published, says a lawyer who has represented some of the venues.

The lawyer estimates that appeals typically cost the venue $120,000 and the Council $40,000 not including staff time. Council has lost at least seven such cases over the past two years, and its recent rejection of continued trading hours for the Sugarmill Hotel and Rouge Downunder in Kings Cross are also being appealed.

One such case made headlines when Justin Hemmes’ Establishment entertainment complex in the CBD appealed Council’s refusal to continue its late trading hours. Council’s defence was typical of these cases, citing exaggerated police reports of violence and other offences, and claiming this showed bad management. As the case went all the way to a judgement, we can study the findings.

The huge entertainment complex on a Saturday night turns over 7,000 to 9,000 patrons adding up to about 1 million annually. Since an initial trial period beginning in 2000,   venues in the complex have traded until 3am with the Tank Nightclub (capacity 810 patrons, 104,000 annually) trading until 10am.

There are six other late-night or all-night venues nearby, plus a 24-hour MacDonalds, in a recognised 24-hour entertainment precinct.

Last year saw the end of a five-year trial period and the start of a battle for the Establishment to maintain its existing trading hours. Yet Council universally describes this as “extending trading hours”, a peculiar piece of spin that whips up objections to such proposals but doesn’t fool a law court.

Council opposed retention of the trading hours “based on data that directly links serious acts of violence and anti-social behaviour to the Tank Nightclub.” Council wanted a cutback to 2am because the club had  “a poor record of management and is unable to curtail anti-social behaviour and alcohol related violence”.

This is where the argument enters a mirk of statistics. Council originally cited 174 police “incidents” connected to the club over 17 months. This sounds like the “out-of-control violence” always quoted by the anti-pub activists. But a breakdown changes the picture:

Of the 174 incidents, 87 were “business inspections” by police and 33 fruitless drug searches, totalling 120 incidents that cannot be held against the venue. Then came Drug search (possession) – 9; Assault – 18 (5 doubtful, no-one hospitalised); Sexual assault – 1 (occurred away from premises); and Remove patron – 8.

Council  claimed that even “one incident of violence is unacceptable because it offends community standards”. The Judgement found this was “clearly impracticable and should not be the basis for assessment. It is not the test imposed by DCP [Development Control Plan] 2007 where the test is ‘good management’.” It continued: “I am not satisfied that … the identified assaults, violence or anti-social behaviour are excessive in number, have been poorly managed or that there was consistent pattern of unacceptably responding to these incidents.”

Some would say a million patrons is also an indication of community standards.

Council argued the nightclub “promotes a ‘drug culture’ [which] is a further sign of poor management”. But the Judgement rejected this too, saying  “evidence of drug use is minuscule compared to the number of patrons and opportunities the police have taken to check for drug use”.

There had been two noise complaints over the 10-year life of the complex, and there were “no outstanding breaches recorded with the Office of Liquor Gaming and Racing.”

There were 21 objections to the application for “extended hours”, all from the Mantra Serviced Apartments at 2 Bond Street. However the building management later withdrew its objection upon discovering the the hours were to be maintained rather than “extended”. The Judgement noted that these were serviced apartments rather than residential, and noted the very small number of complaints received over ten years.

The appeal for a new five-year trial was upheld.

The Commissioner noted that Council’s DCP: “acknowledges that a night-time economy is an integral part of its commercial, cultural and social fabric and an important part of Sydney social and street life that contributes to Sydney’s image as a global city, and plays an important role in the city’s economic growth. The night-time economy is seen as an asset for people living and working in the city as well as tourists.”

by Michael Gormly