Durndell v Commissioner for Liquor and Gaming Regulation [2018] QCAT 61

CITATION: Durndell & Ors v Commissioner for Liquor and Gaming Regulation & Anor [2018] QCAT 61 PARTIES: John Digby Durndell, Bronwyn Evans, Joe Soares, Deborah Cronau, and Dean Slade (Applicants) v Commissioner for Liquor and Gaming Regulation (First Respondent) NT Pubco Pty Ltd (Second Respondent) APPLICATION NUMBER: GAR238-16 MATTER TYPE: General administrative review matters HEARING DATE: 18 October 2017 HEARD AT: Brisbane DECISION OF: Member Quinlivan DELIVERED ON: 6 March 2018 DELIVERED AT: Brisbane ORDERS MADE: The decision of the Commissioner for Liquor and Gaming dated 4 August 2016, to grant an application to NT Pubco Pty Ltd for a permanent extension of trading hours from 12.00am to 2.00am Sunday to Thursday and 1.00am to 2.00am Fridays and Saturdays is confirmed, subject to the inclusion of the following additional conditions to the conditions currently specified in licence number 177880 relating to the Full Moon Hotel on Bramble Bay at 118 Eagle Terrace Sandgate QLD 4017:  The Licensee will have food prepared on the premises available to patrons at all times while trading;  The Licensee will provide a free taxi phone to be available for the use of patrons or if requested staff will call a taxi for patrons.  The Licensee will ensure that, of the -- 1 of 14 -- 2 crowd controllers the Licensee is required to engage under section 142AG of the Liquor Act, one (1) crowd controller must monitor patron dispersal from the premises. CATCHWORDS: GAMING AND LIQUOR – LIQUOR LICENSING – PERMITS AND APPLICATIONS impact on amenity, new conditions discussed at hearing, application dismissed APPEARANCES: APPLICANT: No appearances RESPONDENT: Commissioner for Liquor and Gaming represented by Mr Dominic Robinson of Counsel instructed by Mr K Metcalf NT Pubco represented by Mr Michael Blong, Ms Lucinda Black and Mr Matt Dowling REASONS FOR DECISION Background [1] NT Pubco Pty Ltd, is the licensee of “The Full Moon Hotel on Bramble Bay” located at 118 Eagle Terrace, Sandgate, Qld. On 4 August 2016, the Commissioner for Liquor and Gaming approved an Application by the licensee to permanently extend trading hours at the premises from 12.00am to 2.00am from Sunday to Thursday and from 1.00am to 2.00am on Fridays and Saturdays. [2] The Commissioner imposed conditions1 that he considered would ensure that “it would be unlikely that the amenity of the community would be adversely affected” if the following conditions were endorsed on the Licence:  After 12 midnight, noise emanating from the premises including amplified or non-amplified noise and patron noise must not exceed 75dB(C), fast response, when measured approximately 3 metres from the primary source of the noise.  The Licensee must ensure that a Register of Noise Complaints is kept and maintained at the premises to record details of all noise complaints showing the name of the complainant, time and date of 1 Reasons Document dated 21 October 2016, para 20. -- 2 of 14 -- 3 the complaint and the details of any remedial action taken by management to rectify the problem. [3] The Licensee did not raise any objections to these conditions being imposed. [4] The Application for Review was lodged by John Digby Durndell, on behalf of Objectors, on 16 September 2016. The Applicant stated that the Objectors wanted the previous hours reinstated. He contended that the original hours were very generous (perhaps unreasonable) for an Hotel surrounded by residential housing and were the upper limits of what homeowners in the vicinity were prepared to tolerate. He asserted that the new 2.00am closing time was totally unreasonable given the Hotel's location. [5] There were 13 public objections and a petition containing 56 signatures received with respect to the Application2. The concerns were summarised in the Reasons Document3 as follows: a. Annoyance from noise coming from functions and bands; b. Lack of available parking; c. Annoyance and disturbance caused from intoxicated patrons; d. Theft and damage to property; e. Disturbances including traffic noise, slamming car doors, drunken footpath conversations, yelling and arguments, violent and frightening behaviour, offensive language and littering; f. Anti-social behaviour issues. [6] On 7 April 2017, the Tribunal ordered that Ms Bronwyn Evans, Mr Joe Soares, Ms Deborah Cronau and Mr Dean Slade be joined as Applicants with Mr Durndell in these proceedings. None of these persons attended the hearing on 18 October 2017. [7] On 28 April 2016 the Office of Liquor and Gaming Regulation (OLGR) convened a conference to provide an opportunity for the Objectors to express their concerns. Present at the meeting were Representatives of NT Pubco Pty Ltd, 15 objectors and officers from the OLGR. No resolution was achieved at the conference. [8] In his written Submissions4, the Commissioner set out that the Application for Review proposed that the decision under review ought to be set aside because: 2 Book of Relevant Documents pages 76-137 3 Reasons Document at para 39 -- 3 of 14 -- 4 a) The disturbance caused by patrons after exiting the premises; b) Inadequate parking; c) The significant number of objectors; d) The Licensee has no jurisdiction over patrons beyond the boundary of the premises; e) Denial of natural justice; f) The lack of provision of relevant material; g) The Licensee engaging a former Office of Liquor and Gaming (OLGR) employee as a consultant; h) The Licensee relying on irrelevant considerations; i) Lack of relevance of Police and OLGR Compliance objections; j) Lack of relevance that the Licensee is a new licensee; k) Factors put in place by the Licensee to protect amenity are not relevant; l) Avenues of complaint are irrelevant. [9] The Brisbane City Council did not support the extension of licensed hours until 2.00am Monday to Sunday because the proposed change might result in an increase in audible and detectable noise that impacts on the amenity of residents located nearby. [10] The Liquor Unit North Brisbane District of the Queensland Police Service assessed the application and advised that it had no objection subject to the Office of Liquor and Gaming Regulation assessing the suitability of the applicant and potential amenity issues arising from the event. What is the relevant law? [11] The Tribunal may review decisions of the Commissioner to grant or refuse an application for extended hours5 by way of a fresh hearing on the merits6 to produce the correct and preferable decision7. [12] The Tribunal has all the functions of the original decision-maker8 and may confirm or amend the decision, set aside the decision and substitute its 4 Submissions of the First Respondent para 12 5 Liquor Act 1992 (Qld), s 21. 6 QCAT Act, s20(2) 7 Ibid s 20(1) 8 Ibid s 19(c) -- 4 of 14 -- 5 own, or return the matter to the decision-maker for reconsideration9. The Tribunal is required to hear the review on the basis of the evidence that was before the decision-maker, unless leave is given for new material to be presented.10 [13] The Liquor Act 1992 (Qld) sets out the purposes of the legislation. In particular, Section 86(1) details the hours for which an application for extended trading hours may be granted. [14] The Tribunal (standing in the place of the Commissioner) may only approve extended trading hours if, after considering all of the relevant matters, it finds that the requirements of the legislation have been satisfied. [15] Section 119(3) of the Liquor Act sets out the grounds upon which an objection can be made by a member of the public. The grounds are that if an application were granted, 1 or more of the following may happen: (a) undue offence, annoyance, disturbance or inconvenience to persons who reside, work or do business in the locality concerned, or to persons in, or travelling to or from, an existing or proposed place of public worship, hospital or school; (b) harm from alcohol abuse and misuse and associated violence; (c) an adverse effect on the health or safety of members of the public; (d) an adverse effect on the amenity of the community. [16] Section 121 if the Liquor Act identifies the matters that the Tribunal must have regard to when determining whether to grant an application for extended trading hours. [17] These include: (a) Matters addressed in any a community impact statement; (b) The public interest in so far as it relates to the main purpose of the Act or the impact on the amenity of the community; (c) Objections made to the grant of the application; (d) Comments from the local government for the area to which the application relates; 9 Ibid s 24(1) 10 Liquor Act 1992 (Qld) s 33. -- 5 of 14 -- 6 (e) For an application for an extended trading hours approval mentioned in section 86(1), comments from the police district officer for the locality to which the application relates; (f) The impact on the amenity of the community concerned; [18] In addition, for an application for an extended trading hours’ approval mentioned in section 86(1)— (i) The previous conduct of the applicant in discharging any duties under this Act previously placed on the applicant, especially for the premises for which the extension is sought; and (ii) The applicant’s ability to control the noise and behaviour of the number of persons that could reasonably be expected to be on and in the vicinity of the premises if the extension were granted; and (iii) The suitability of the premises and its facilities for the purpose for which the extension is sought. [19] When considering the effects of a decision on the health and safety of members of the public, the amenity of a community or locality11, the Tribunal may take into account the following matters: (a) The disbursement of persons leaving the relevant premises; and (b) The availability of public transport during, and immediately before or after, the hours of operation of the relevant premises; and (c) The nature and level of noise from the relevant premises. [20] The Tribunal may also consider whether any of the following has happened, and the likelihood of any of the following happening, in relation to the behaviour of persons in or near the relevant premises12: (a) Violence; (b) Vandalism; (c) Nuisance; (d) Drunkenness; 11 Ibid s 128B. 12 Ibid, s 128B -- 6 of 14 -- 7 (e) Public urination, vomiting or defecation; (f) Disorderly, riotous, threatening, indecent, offensive or insulting behaviour; (g) Noisiness; (h) Obstruction of a road, footpath or other thoroughfare. [21] The Tribunal is not limited to a consideration of these matters alone13. Further, the Act does not contemplate that there be no impact on the amenity but rather that the impact be minimized14. The Applicant’s case [22] The Applicants were not legally represented in these proceedings and did not attend the hearing. They provided various documents that outlined their objections to the extension of the trading hours at the Hotel. [23] In particular on 22 September 2017 the Tribunal received a document titled “Summary of Objections” that addressed the following issues:  Significant Objection – the disruption through noise and movement caused by patrons exiting the Hotel grounds in addition to the noise generated by the premises itself.  Insufficient weight given to concerns – the OLGR has largely ignored the concerns of the objectors and has denied them the right to a healthy night's sleep and safe and peaceful downtime.  Flow-on drinking.  Inability to manage disturbances – the Hotel has no authority or control over the behaviour of patrons who have exited the boundaries of the premises. The Community Impact Statement failed to identify these disruptions and take them into account which presented an incomplete picture to the OLGR.  Minimisation of Impact - the Commissioner has completely disregarded the effect of the time of day and has failed to address the Objectors concerns.  Prevention – by granting the extension to the hours the Commissioner has removed the protection of sleep hours which previously existed. 13 Ibid, s128A(2) 14 Staddon and Ors v Chief Executive Department of Employment, Economic Development and Innovation and Anor [2011] QCAT 258 -- 7 of 14 -- 8  Previous goodwill – the lack of formal complaints was used as proof that no problem existed.  No Net Community Benefit – the negative effect on the community from extended drinking and gambling hours far outweighs any other benefit claimed.  Future owners – the Hotel has instituted many minor (and largely ineffective) changes as a demonstration of their good intentions. However, this is largely irrelevant in the longer term. [24] The Applicants submitted that their objection relates mainly to the disruption through noise and movement caused by patrons exiting the hotel grounds. This was in addition to the noise generated by the premises. They argue that the Commissioner did not arrive at a fair and balanced decision and they seek to have the previous operating hours reinstated. [25] They claim that insufficient weight was given to their concerns and that they were largely ignored by the Office of Liquor and Gaming Regulation. Consequently, they submitted that the OLGR had denied them the right to a healthy night’s sleep and a safe and peaceful downtime. [26] They contend that it is inappropriate to allow a business to operate until 2.00am every night of the week when the Hotel has positioned itself as a flow-on drinking establishment relative to other nearby bars that close at midnight. [27] They expressed concern that the Hotel can take all required legal measures to control patrons on site but has no authority and control over the behaviour of patrons who have exited the hotel's boundaries. [28] They argue that the Community Impact Statement failed to identify these disruptions and take them into account which presented the OLGR with an incomplete picture of the situation. [29] The Application for Review stated that the decision was wrong or not properly made, because inexplicably it did not address the key objection to the extended trading hours. They stated that the over-riding objection related to disturbance caused by hotel patrons after exiting the hotel premises. In their view, the grossly inadequate parking provided in the Hotel grounds significantly contributes to the problem, as patrons park along the nearby streets outside their homes. They claim that disturbances include traffic noise, slamming car doors, drunken footpath conversations, yelling and arguments (both verbal and physical), violent and frightening behaviour, offensive language and litter. [30] The Applicants claim that none of the factors cited by the OLGR in coming to the decision to extend the hours address this concern. -- 8 of 14 -- 9 [31] Each of the applicants provided written objections. At least 7 of the other objectors also provided written objections. Submissions by the Commissioner in response to the Applicants. [32] The Licensee provided a Community Impact Statement and the Commissioner was satisfied that it substantially addressed all relevant matters in accordance with the legislation. [33] However, the Commissioner points out that the Tribunal is required to make its own assessment of the Community Impact Statement by way of a fresh hearing on the merits and material in the Book of Relevant Documents to produce the correct and preferable decision. [34] The Commissioner asserts that the concerns of local residents and the Council about the close proximity of residences that may be disturbed by noise, intoxicated patrons and antisocial behaviour were considered. Further the higher potential for alcohol-related issues that might occur from midnight onwards was also considered. [35] The Commissioner points out that no objections were made by the Police or Compliance. [36] The Commissioner formed the view that any potential adverse effect for local residents could be prevented from becoming undue or unreasonable if the conditions of the licence and the provisions of the Act were complied with. [37] There will be no amplified entertainment during the extended trading hours and a range of facilities will be available to patrons until close of trade. [38] There was no evidence that the Licensee has been irresponsible or non- compliant or that the Licensee will not take all reasonable steps to ensure patron and other premises-related noise will not negatively impact on local residents. [39] There are already conditions to prohibit external speakers and to prevent patrons from using the outdoor area adjoining Curlew Street after 8.00pm to minimise the impact on residents. [40] The premises are already subject to the late-night trading provisions of the legislation that directly address the objectors concerns even though it is not usual practice to endorse conditions on the licence that are already provided for under the legislation. a) Further the Licensee is obligated under section 148A to maintain a safe environment for patrons and staff of the premises ensuring liquor is served, supplied and promoted in a way that is compatible with minimising harm from the use of liquor and preserving the peace and good order of the neighbourhood of the premises. -- 9 of 14 -- 10 [41] The Commissioner was also satisfied that the maintenance of an incident register and endorsement of a condition requiring maintenance of a noise complaints register would assist in ensuring that the Licensee is responsive and responsible in minimising the potential for noise and patron behaviour to annoy or disturb the local community. [42] Finally, the Commissioner submits that the provisions of the Act and the conditions endorsed on the license provide the community with greater control over the impact on the amenity of the community than did the license without the extended trading hours. [43] The second Respondent (Licensee) submitted that the Commissioner was provided with all of the available and relevant information to make a fair and balanced decision. The Commissioner had the benefit of the Objection Conference and considered the outcome of the conference in making his decision. [44] The Licensee pointed out that the Applicants make claims about past incidents at the venue that occurred prior to March 2016. The Licensee purchased the business operation and transferred the liquor and gaming licenses to their trading entity in November 2015. They submit that any issues prior to this date relate to the previous Licensee and that they should not be held accountable for those matters. [45] The Licensee argued that they have acknowledged concerns of the Applicants in regard to some of the matters raised and have taken steps to mitigate their concerns. [46] The Licensee submits that they have a robust Risk Assessment Management Plan which assists management and staff to mitigate any potential amenity issues that may arise. [47] The Licensee acknowledges that the Hotel is situated within a residential area and there may well be some impact. However, the Licensee submits that they have advised how such issues would be mitigated and this was accepted by the Commissioner. [48] The Licensee submits that it has provided adequate information to show that it has the necessary practices and procedures in place to achieve the goal of not adversely affecting the amenity of the area. [49] In summary, the Commissioner submitted that those matters raised in the Applicants’ submissions were all considered as part of the Commissioner’s decision. [50] The Commissioner also made the following points:  An Objections Conference was held, which is not a legislative requirement and no resolutions were passed. -- 10 of 14 -- 11  There is no legislative requirement to trade during the extended hours applied for nor to demonstrate market need.  The Community Impact Statement refers to the issues regarding on- site parking.  The Licensee is committed to maintaining acceptable levels of noise by scrutinising patron behaviour in and around the vicinity.  The extended trading hours application met all OLGR requirements in terms of the premises and information required.  The previous conduct of the Licensee had been considered and there was no recent adverse compliance history or complaints recorded.  Concerns of local residents and the Council, especially as regards to the close proximity of residences which may be disturbed by noise, intoxicated patrons and anti-social behaviour, were considered.  The Risk Assessment Management Plan documented the Licensee’s commitment to minimising harm associated with the conduct of the business.  No amplified entertainment is to be conducted during the extended trading hours and a range of facilities is available to patrons until close of trade.  There were no objections from Police or the OLGR Compliance Unit.  There is some potential for local residents to be adversely affected by the grant of the extended trading hours application. However, those adverse effects could be prevented from becoming undue or unreasonable provided the conditions of the licence and the provisions of the Act were complied with.  The Act provides avenues to complain to OLGR and empowers OLGR to address issues in the event of substantial non-compliance. [51] Finally, the Commissioner submitted that the provisions of the Act and the conditions endorsed on the License provide the community with greater control over the impact on the amenity of the community than did the terms of the license without the extended trading hours. Discussion [52] A number of logistical concerns were raised by some objectors regarding the process that was followed in this matter. There appeared to be ongoing unhappiness that the premises are operating near their residences. -- 11 of 14 -- 12 [53] Some of the concerns appear to be at odds with what is required by the legislation. Any issues around the need for the hours to be extended are irrelevant. A decision-maker is guided by the legislation. [54] There is no evidence that the requirements of the relevant sections15 of the Act have not been met by the Licensee. [55] A comprehensive Community Impact Statement was prepared and it concluded that “while any licensed premises may increase the potential for public drinking, litter, noise, adverse behaviour and social and health factors to arise in the area, it is the licensee's responsibility to make all reasonable efforts to maintain a safe environment inside and outside the premises and ensure patrons and other venue related noise does not negatively impact on local residents and their businesses. Given the requirements of the legislation, it is reasonable to assume that the potential impact on residents should be appropriately minimised. [56] The Council submits that the extension of the licensed hours until 2 am Monday-Sunday may result in the increase in audible and detectable noise which impacts on the amenity of residents located nearby. [57] The Council also advised that a review of the site history indicates there are no planning conditions regulating the hours of operation for the hotel use. As a result, the changes proposed to the liquor license will not trigger any need for any development (town planning) approval. [58] The Liquor Unit North Brisbane had no objections. [59] The impact on the amenity of the community, that was raised as a concern by the objectors and the local authority, must be considered. [60] I am satisfied that the Risk Assessment Management Plan, addresses issues relating to noise and impact on the amenity of the community and provides evidence of procedures proposed to minimise harm associated with the conduct of the Licensee’s business. [61] I accept that the additional conditions that will apply to the Licence with the granting of the extended hours are also relevant when considering the impact on the amenity. I find that the addition of these conditions will mean greater control over the impact on the amenity of the community than what existed prior to the extension of trading hours given those conditions did not then apply. [62] The standard conditions include:  Requirements for the keeping of a Register of Complaints;  The employment of crowd controllers in specified ratios having regard to numbers of patrons, for particular timeframes; for 15 Sections105, 117, 118 and 119 of the Liquor Act 1992 (Qld) -- 12 of 14 -- 13 surveillance to continue for at least an hour after closing time; and  For the operation of closed-circuit television. [63] At the hearing of this matter and in response to the concerns raised, the Licensee proposed and agreed to additional conditions to address these matters as follows:  The Licensee will have food prepared on the premises available to patrons at all times while trading;  The Licensee will provide a free taxi phone to be available for the use of patrons or if requested staff will call a taxi for patrons.  The Licensee will ensure that, of the crowd controllers, the licensee is required to engage under section 142AG of the Liquor Act, one (1) crowd controller must monitor patron dispersal from the premises. [64] The Objections Conference appeared to focus on concerns around noise late at night and from poor patron behavior when leaving the premises. [65] Each of the conditions to be included on the Licence go some way to addressing the noise concerns. [66] There was no evidence of the Licensee not previously discharging their duties under the Act. [67] I acknowledge that there is potential for local residents to be adversely affected by the grant of the extended trading hours and that such adverse effects could be prevented from becoming unreasonable provided the conditions of the licence and the provisions of the Act are complied with. I find the additional conditions to be placed on the license go further to minimising impact on the community than did the terms of the license without the extended trading hours. [68] Accordingly, I confirm the decision dated 4 August 2016 to grant a permanent extended trading hours approval, with the additional conditions proposed at the hearing and supported by both respondents. [69] The order is as follows: The decision of the Commissioner for Liquor and Gaming dated 4 August 2016, to grant an application to NT Pubco Pty Ltd for a permanent extension of trading hours from 12.00am to 2.00am Sunday to Thursday and 1.00am to 2.00am Fridays and Saturdays is confirmed, subject to the inclusion of the following additional conditions to the conditions currently specified in licence number 177880 relating to the Full Moon Hotel on Bramble Bay at 118 Eagle Terrace Sandgate QLD 4017: -- 13 of 14 -- 14  The Licensee will have food prepared on the premises available to patrons at all times while trading;  The Licensee will provide a free taxi phone to be available for the use of patrons or if requested staff will call a taxi for patrons.  The Licensee will ensure that, of the crowd controllers the Licensee is required to engage under section 142AG of the Liquor Act, one (1) crowd controller must monitor patron dispersal from the premises. -- 14 of 14 --