PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Pimpama Commercial Pty Ltd v Council of the City of Gold Coast (No.3) [2020] QPEC 56	
PARTIES:	PIMPAMA COMMERCIAL PTY LTD
(ACN 605 380 363)
(appellant)
v
COUNCIL OF THE CITY OF GOLD COAST
(respondent)	
FILE NO:	3734/2019	
DIVISION:	Planning and Environment	
PROCEEDING:	Conditions Appeal	
ORIGINATING COURT:	Planning and Environment of Queensland, at Brisbane	
DELIVERED ON:	28 October 2020	
DELIVERED AT:	Brisbane 	
HEARING DATE:	Dealt with on the papers – Written submissions closed 23 October 2020	
JUDGE:	R S Jones DCJ	
ORDER:	The appeal is allowed	
LEGISLATION:	Planning Act 2016 (Qld)	
CASES:	Pimpama Commercial Pty Ltd v Council of the City of Gold Coast [2020] QPEC 33
Pimpama Commercial Pty Ltd v Council of the City of Gold Coast (No. 2) [2020] QPEC 48	
COUNSEL:	Mr M Batty for the appellant
	
SOLICITORS:	Minter Ellison for the appellant
McCullough Robertson for the respondent	

[1]	This is an appeal against a condition imposed by the respondent regarding the patronage of a tavern located at Pimpama.  For the reasons set out below, the appeal is allowed. 
Background
[2]	This is the third time this matter has been before the Court.  At first instance, the crucial issue was the trading hours of the tavern.  On behalf of the respondent it was submitted that the tavern ought close at 12.00am midnight, seven days a week.  Conversely, on behalf of the appellant it was contended that the tavern should close at 4.00am or, alternatively, 2.00am.  The Court determined in favour of the appellant, but only as far as allowing the tavern to remain open until 2.00am.  
[3]	The second instance concerned whether the tavern should be permitted to operate until 2.00am, seven nights a week or whether those hours should be limited to only Friday and Saturday nights.  In this regard, the Court determined that the tavern should be permitted to operate until 2.00am, seven days a week.
Current Proceeding
[4]	The current proceeding concerns a condition intended to limit the number of patrons from 12.00am to 2.00am.  The controversial condition is as follows:
“From 12.00am (midnight) to 2.00am, the number of patrons shall be limited to no more than 50.”
[5]	Pursuant to s 65(1) of the Planning Act 2016, a development condition imposed on a development approval must – 
(a)	Be relevant to, but not an unreasonable imposition on, the development or the use of premises as a consequence of the development; or
(b)	Be reasonably required in relation to the development or the use of premises as a consequence of the development.
[6]	In the first substantive hearing of this matter, one of the critical issues was the potential for negative impacts on the amenity of nearby residents.  In this respect, the respondent raised a number of concerns including noise, alcohol and gambling abuse and other anti-social conduct that might occur as a consequence of the tavern being open past 12:00am.  These issues were addressed by six expert witnesses; two engineers, two social planners and two town planners.  
[7]	In the respondent’s written submissions under the heading “compliance with s 65(1) of the Planning Act”, it was submitted that the condition is lawful because it is relevant to ensuring the impacts of the tavern remain at an acceptable level, consistent with the courts findings regarding impacts, and with the expert evidence, which was based on there being up to 50 people at the tavern at 12:00am. 
[8]	The respondent further asserted that the appellant simply presented no evidence about impacts on amenity for a patronage in excess of 50 and that if the limitation on patronage was not imposed, the court could have no confidence that the potential impacts will remain at an acceptable level.
[9]	It was also submitted on behalf of the respondent that the condition would be able to be reasonably monitored and enforced. Indeed, in this context it was submitted that: “The condition limiting patron numbers is simple, uncomplicated and easily enforced.” And, “practically, it is simply a matter of counting patrons, requiring no sophisticated monitoring equipment, not complicated or burdensome continual monitoring”.
[10]	It can be accepted that there is no evidence about impacts on amenity that may arise as a consequence of there being more than 50 patrons on any night. The reason for this was that all the expert witnesses proceeded on the basis of the information provided by the tavern operators that the expected patronage on the busiest nights of Friday and Saturday was expected to be in the order of 50. It was never part of the appellant’s case in the substantive proceeding that 50 would be an absolute maximum, nor was it part of the respondent’s case that patronage should be capped at 50. In this context, to the best of my recollection, there was no serious challenge to the reasonableness of the estimation of 50.
[11]	In the substantive proceeding it was sufficiently open on the evidence, that on some Friday and Saturday nights patronage might be less than 50, and on others, it may be greater than 50. It can also be reasonably inferred from the evidence, that on those occasions when patronage might exceed 50, it would be unlikely to exceed it by a significant number.  As such, in the substantive appeal, the court proceeded on the basis that 50 was an indicative maximum level of patronage for Friday and Saturday nights but, that from 12.00am to 2.00am while patronage would be more than 25 it was likely to be fewer than 50.
[12]	In respect of the respondent’s submissions italicised above at [9], while it would obviously be straightforward to count to 50 persons, the difficulty would be, as the appellant points out, determining which 50 persons can stay or, more problematically, deciding which of those patrons present must vacate the premises. 
[13]	On those occasions when, after midnight, patronage exceeds 50, the appellant’s rhetorical question “how would the operator go about requiring the extra patrons to leave?” is a reasonable one. The condition would require the operator to make some arbitrary decision about who is to stay and who is to go. In this regard, it is far from “a simple matter of counting patrons”. One could hardly imagine a more potentially troublesome situation than a hotel employee, on the stroke of midnight, having to direct some patrons to leave for no other reason than it was them who were arbitrarily chosen to leave while others were permitted to remain.
[14]	The respondent’s reliance on the current COVID-19 situation is of no assistance. First, as far as I am aware, patronage is determined by the ability to comply with social distancing requirements.  Second, as was pointed out on behalf of the appellant, the COVID-19 situation places a limitation on the number of patrons that may enter and remain on a premises. It is an entirely different proposition to, on the one hand, limit the number of persons who may enter a premises to, on the other hand, having to direct some patrons who wish to remain that they must leave while others are allowed to stay. 
[15]	In this regard, the imposition of a condition of this type might well be likely to give rise to anti-social conduct. By that I mean people who did not want to leave having to be evicted and left outside the premises, where, it could be reasonably inferred, in some cases in an agitated if not outright angry state.
[16]	Finally, I reject the implicit submission made by the respondent’s in their written material to the effect that, not to limit patronage to no more than 50 after midnight, would be in some way inconsistent with the findings by the Court when this matter was first dealt with. The matter was and has always been dealt with on the basis that the number of patrons on Friday and Saturday nights was the operator’s best estimate of attendances it was never meant to be a figure set in stone. 
[17]	It was submitted on behalf of the appellant that the onus was on the respondent to establish that the condition ought stand and not on the appellant to establish that it ought be struck down. It is unnecessary to reach any decision on the point because I am more than satisfied that, while the number of patrons might be a relevant matter for the purposes of s 65 of the Planning Act, the condition under challenge would place an unreasonable and indeed probably an unworkable imposition on the appellant.
[18]	For the reasons given the order of the court is that the appeal is allowed.