In brief

The case of Pimpama Commercial Pty Ltd v Council of the City of Gold Coast [2020] QPEC 33 concerned an application to the Planning and Environment Court (Court) by Pimpama Commercial Pty Ltd (Developer) about the Council of the City of Gold Coast's (Council) decision to partly refuse a change (other than a minor change) application which sought to extend a condition which constricts the operating hours of a tavern from 12 midnight each day to 4 am each day in relation to a development approval for a tavern (Tavern) located at 3-5 Dixon Place, Pimpama. 

The Developer appealed the Council's decision to partially refuse the Developer's application to extend the Tavern's operational hours to 4 am. During the course of the appeal the Developer also submitted an alternative position that the operational hours for bar service cease at 2 am and for gambling at 4 am. 

The Council maintained that the bar service and gambling ought to cease at 12 midnight in accordance with the development approval for the Tavern.

The Tavern itself was approved in an earlier development approval, therefore, the only disputed issue in the appeal was whether the proposed extended operational hours of the Tavern were appropriate. The Court was therefore required to undertake a balancing exercise of "the genuine potential positives that might arise from the extended trading hours against the negatives (in the overall community well-being including health and sense of amenity including anti-social conduct) that might result" (at [39]).

The Court considered evidence in relation to amenity, social planning and town planning and concluded that there was a need for the operational hours of the Tavern to be extended to 2 am on Thursday, Friday and Saturday nights, but sought submissions from the parties about whether the Court could or should make a distinction between trading hours for different nights. 

Amenity impacts caused by the extended operating hours were considered to be minimal

The Court heard evidence form a mechanical engineer relied on by the Developer and an environmental consultant relied on by the Council regarding the potential amenity impacts generated from patrons leaving the Tavern after midnight. The potential amenity impacts included noise and antisocial behaviour such as property offences, violence and loud and abusive language. 

The Court accepted evidence that antisocial behaviour may occur during the proposed extended operational hours, and that there would be a staggered departure of patrons between midnight and 4 am.

On balance, the Court concluded that "with the imposition of appropriate conditions, no unacceptable impacts on residential and/or on community amenity would arise and, that the tavern ought not be prevented from trading beyond midnight for that reason" (at [37]).

Court concluded that there would be minimal social planning impacts as the Pimpama community was not vulnerable

The Court then went on to consider evidence from the social planners and was satisfied, on balance, that the Pimpama community was not vulnerable to risks associated with gambling and alcoholic consumption. 

The Court balanced the risks associated with gambling and alcoholic consumption against the employment and social benefits provided by the Tavern including the "45 electric magnetic gambling (EGM’s) available to inject further joy into [the patrons'] lives", and was satisfied that there was a sufficient level of community need to extend the operational hours past midnight till 2 am, but no meaningful benefit in extending the operational hours till 4 am (at [62]). 

Court held that there were no matters of non-compliance and the views of the relevant submitters opposing the change were relevant but unpersuasive against the expert evidence

The Court considered the views of eight properly made submissions, six of which were against the extended operational hours, and recognised the relevance of the submissions. However, the Court did not consider the evidence informative one way or the other, and ultimately determined that the evidence of the town planning experts was more persuasive. 

The Court noted that under the relevant planning scheme a tavern is generally expected to close at midnight, but the Court also noted that:

(a) a reasonably informed Pimpama community member would probably have been aware of nearby taverns trading till 2 am; and

(b) any non-conformity with the relevant planning scheme in relation to the general requirement to close at midnight would not of itself warrant refusal. 

After concluding that there would be no meaningful negative impacts on amenity or the general health of the community if the operational hours were extended to 2 am, the Court addressed the evidence of two town planning experts and found that the extension of the trading hours would not create any genuine non-compliance with the relevant planning scheme in relation to amenity or social and health issues. 

Conclusion

After concluding that there is a community need to extend the operational hours of the Tavern on Friday, Saturday and likely Thursday night from midnight to 2 am, the Court noted that there may be a reduced community need on the remaining days of the week. 

The Court therefore requested submissions from the Council and the Developer about whether the Court could or should make a distinction between operational hours for different nights and withheld its orders in anticipation of further submissions. 

In the case of Pimpama Commercial Pty Ltd v Council of the City of Gold Coast (No. 2) [2020] QPEC 48 the Court heard submissions from the parties in respect of the extension of trading hours to 2 am for every night of the week and stated that it was inclined to make orders limiting the trading hours of the Tavern to 2 am on seven nights of the week. The Court refrained from making final orders until hearing from the parties about the form of the orders.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

Related Articles