Body Corporate for Q1 v Commissioner for Liquor and Gaming Regulation & Anor [2016] QCAT 464

CITATION: Body Corporate for Q1 CTS 34498 v Commissioner for Liquor and Gaming Regulation & Anor [2016] QCAT 464 PARTIES: Body Corporate for Q1 CTS 34498 (Applicant) v Commissioner for Liquor and Gaming Regulation (First Respondent) Gourmet En Counter Pty Ltd (Second Respondent) APPLICATION NUMBER: GAR282-15 MATTER TYPE: General administrative review matters HEARING DATE: 31 October 2016 HEARD AT: Brisbane DECISION OF: Member Hanly DELIVERED ON: 2 December 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Commissioner for Liquor and Gaming Regulation made on 18 July 2016 is set aside. 2. The matter is returned to the Commissioner for Liquor and Gaming Regulation for reconsideration having regard to the impact of the application on the pool and barbecue area, being part of the common property of Q1 Resort. CATCHWORDS: LICENSING – LIQUOR AND GAMING – where an application to vary the conditions of a liquor licence was made – where the Commissioner did not take into account the effect of noise on common areas, a swimming pool and barbecue leisure area in assessing noise impacts – where it was held that common property areas such as pool and barbecue areas should be treated as relevant in assessing the impact of an entertainment proposal. -- 1 of 8 -- 2 Body Corporate and Community Management Act 1997 (Qld), s 30, s 31, s 35, s 152, s 167, s 168, s 169, Liquor Act 1992 (Qld), s 3(a), s 3(b), s 3(d), s 4, s 30(1), s 33, s 34(2), s 111(1), s 121, s 128A, s 128B, s 128C, s 187 Liquor Regulation 2002 (Qld), s 4(2)(d), s 4(3) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1), s 20(2), s 24(1) Australian Leisure and Hospitality Group v Commissioner for Liquor and Gaming [2016] QCAT 90 APPEARANCES: APPLICANT: Mr D L K Atkinson of Counsel instructed by Carter Newell Lawyers. RESPONDENT: Mr D Robinson, Principal Legal Officer (First Respondent) Ms J Wood, Commercial Licensing Specialist Consultant (Second Respondent) REASONS FOR DECISION [1] On 2 October 2015, the Commissioner for Liquor and Gaming Regulation granted Gourmet En Counter Pty Ltd’s application to vary the conditions applying to Licence No. 156462 (Licence). [2] The Licence relates to premises from which Gourmet En Counter Pty Ltd carries on its business under the name of “Longboards Café and Bar”. The premises are located on the ground level of Q1 Resort, situated at Northcliffe Terrace, Surfers Paradise. [3] The applicant sought review of the decision, and was granted leave to present new evidence. That evidence comprised an acoustic report prepared by an acoustic expert, Mr Craig Byers of Air Noise Environment (ANE Report). [4] The Commissioner was then given time to reconsider the original decision, in light of the new evidence.1 [5] The Commissioner advised the applicant on 18 July 2016 that the matter had been reconsidered, and the original decision was confirmed. 1 Liquor Act, s 34(2). -- 2 of 8 -- 3 [6] The applicant sought review of the decision and the reconsidered decision.2 What is the applicable legislation? [7] The main purposes of the Liquor Act 1992 (Qld) (Liquor Act or the Act) include a requirement to facilitate and regulate the optimum development of the tourist, liquor and hospitality industries of the State having regard to the welfare, needs and interests of the community and the economic implications of change,3 and to provide for a flexible, practical system for regulation of the liquor industry of the State with minimal formality, technicality or intervention consistent with the proper and efficient administration of the Act.4 [8] A licensee may apply to vary a licence by amending or revoking a condition of the licence.5 [9] When deciding such an application, the Act stipulates the matters to which the Commissioner must have regard.6 [10] When an operator proposes to conduct entertainment from premises, an application must be accompanied by details of the nature and type of the entertainment and a written assessment about the expected acoustic qualities of the premises.7 [11] The Commissioner may require an applicant for a licence to give the Commissioner a report about the acoustic qualities of premises when the premises are completed if noise from any source is, or is likely to be made, at a level in excess of 75dB(C) fast response when measured about 3m from the source.8 [12] The Commissioner may impose conditions on a licence relating to public safety or amenity, including the adoption of noise abatement measures.9 [13] If an investigator believes on reasonable grounds that noise coming from a licensed premises is unreasonable the investigator may give written notice to the licensee requiring the noise to be reduced.10 2 Ibid, s 30(1). 3 Ibid, s 3(b). 4 Ibid, s 3(d). 5 Liquor Act, s 111(1). 6 Ibid, s 121. 7 Liquor Regulation 2002 (Qld) (Regulation), s 4(2)(d). 8 Ibid, s 4(3). 9 Liquor Act, s 128A, s 128B, s 128C. 10 Ibid, s 187. -- 3 of 8 -- 4 Nature of the review [14] The applicant made a submission or objection in the proceeding in which the decision was made and is aggrieved by the Commissioner’s decision, so may therefore apply for a review of that decision.11 [15] The Tribunal must determine the matter by reference to evidence that was before the Commissioner.12 [16] The Tribunal stands in the shoes of the decision maker to arrive at the correct and preferable decision,13 and must decide the review by way of a fresh hearing on the merits.14 [17] The Tribunal may confirm or amend the decision, or set the decision aside and either substitute its own decision or return the matter for reconsideration with directions.15 Background [18] Q1 is a body corporate16 and the members of the body corporate are the owners of all lots included in the scheme.17 [19] The scheme comprises 526 residential lots and common property, which includes a gymnasium, barbecue area, swimming pools and outdoor recreational areas. [20] Longboards Café and Bar is adjacent to the common property areas of Q118 and is in close proximity to several residential and holiday apartment buildings. Applicant’s Contentions [21] The applicant submitted that, when considering the Act as a whole, and particularly having regard to sections 3(a), 111, 128C and 187, any application to vary a licence must include critical consideration of the need to minimise “adverse effects on the amenity of the community”. [22] The applicant further submitted that in both the original decision and the reconsidered decision, there has been a failure to give a clear explanation or justification for the conclusion reached.19 11 Liquor Act, s 30(1). 12 Ibid, s 33, s 34. 13 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20(1). 14 Ibid, s 20(2). 15 Ibid, s 24(1). 16 Body Corporate and Community Management Act 1997 (Qld) (BCCM Act), s 30. 17 Ibid, s 31. 18 Figure 1, page 9 of 15 of Submissions of Applicant filed 23 August 2016. 19 See Australian Leisure and Hospitality Group v Commissioner for Liquor and Gaming [2016] QCAT 90 at [24]-[25]. -- 4 of 8 -- 5 [23] The applicant contended that in the original decision, there is an absence of evidence to support the purported findings of fact, and a failure to consider or weigh competing evidence on the issue. [24] In support of that contention, the applicant referred to the decision maker’s conclusion that the acoustics report prepared by CRG Acoustics and submitted by the second respondent in support of the application for licence variation “is comprehensive and appears to have been prepared in accordance with the relevant Liquor Guidelines”.20 [25] The applicant noted that such a statement failed to consider criticism by various parties21 that the CRG report failed to comply with Guideline 50 issued by OLGR. [26] The applicant also noted that alleged shortcomings in the CRG report in relation to timing of testing; location of testing; consideration of patron noise and conditions of testing were not addressed by the original decision maker. [27] In relation to the reconsidered decision, the applicant submitted that the decision maker effectively dismissed the ANE report, making findings, which the applicant submitted appear to be incorrect. [28] These findings were that the CRG report was prepared in accordance with Guideline 50;22 whereas the ANE report took into account the adjacent pool and barbeque common areas contrary to Guideline 5023 and did not provide calculations, reasoning or other evidence to support the conclusion about the cumulative effect of music and patron activity.24 Should common property such as pool and barbecue areas be included in acoustic testing for affected premises? [29] For the definition “unreasonable noise”25, Regulation 4026 provides the limits for noise at various times when measured at any affected premises. [30] “Premises” is defined27 as follows: premises includes— (a) land; and (b) a building or structure on or in land; and 20 Statement of Reasons dated 22 December 2015, para [48]. 21 Gold Coast City Council letter 26 May 2015 (p105 Commissioner’s file), Body Corporate for Q1 letter 22 May 2014 (but obviously 2015) (p127 Commissioner’s file), ANE report dated 31 May 2016. 22 Statement of Reasons for Reconsidered Decision 18 July 2016, para [6(d)]. 23 Ibid, para [6(e), (f), (g)]. 24 Ibid, para [6(h)]. 25 Liquor Act, s 187(5). 26 Liquor Regulation 2002. 27 Act, s 4. -- 5 of 8 -- 6 (c) a vehicle, boat, aircraft, train or other means of transport. [31] Guideline 50 notes that the Act does not differentiate between indoor and outdoor areas of affected premises, such that the standard in relation to noise limits therefore applies to all areas of affected premises including indoor and outdoor areas. [32] The first respondent did not dispute “that owners and occupiers of apartments in the Q1 Resort have the right to use common property, such as the swimming pool and the BBQ area” but submitted that “in determining the noise limits to be imposed on a licence, Guideline 50 is concerned with the impact of noise at the place where a person resides”. It was further submitted that: 28 It would be unreasonable to assess noise from a communal area, particularly one designed for active recreation such as a swimming pool and BBQ area where there is reasonable expectation that noise from other people will be audible. [33] The first respondent submitted that such a view is consistent with the main purposes of the Act, which seeks to balance the adverse effects on the amenity of the community with the need to facilitate and regulate the optimum development of the tourist, liquor and hospitality industries of the State.29 [34] Common property for a community titles scheme is owned by the owners of the lots included in the scheme.30 The body corporate is required to administer, manage and control the common property reasonably and for the benefit of lot owners.31 [35] The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that causes a nuisance or hazard; or interferes unreasonably with the use or enjoyment of another lot included in the scheme, or the use or enjoyment of the common property by a person who is lawfully on the common property.32 [36] A community titles scheme, such as Q1 Resort, also has by-laws, which provide for a range of matters, including the regulation of the use and enjoyment of common property.33 The by-laws appear in the community management statement for the scheme, however if the community management statement does not include by-laws, the by-laws for the scheme are the provisions stated in Schedule 4.34 28 Submissions of first respondent filed 13 September 2016, para [55]. 29 Submissions of first respondent filed 13 September 2016, para [56]. 30 BCCM Act, s 35. 31 Ibid, s 152. 32 Ibid, s 167. 33 Ibid, s 169(1)(b)(ii). 34 Ibid, s 168. -- 6 of 8 -- 7 [37] Schedule 4 includes standard by-laws relating to, amongst other things, noise and the behaviour of invitees.35 [38] The Tribunal has not been provided with the community management statement for Q1 Resort. However, it would be surprising if a scheme of this magnitude and style did not have its own by-laws in relation to noise and the behaviour of invitees, but if it did not, the standard by-laws would apply. [39] Accordingly, the Tribunal is satisfied that the owners and occupiers of Q1 Resort are entitled to the peaceful enjoyment of their lot and the common property. [40] The common property area of the pool and barbecue area of Q1 Resort is extensive, and in keeping with the standard that one might expect of a five star resort. It is an area which lends itself not only to swimming and barbecue events, but also to use as an outdoor area for peaceful enjoyment of activities such as reading and sunbathing. There is furniture provided to facilitate these activities. [41] None of the lots included in Q1 Resort has an outdoor balcony, so that the only location within the scheme to which an owner or occupier wishing to enjoy fresh air and time outdoors might go would be the pool and barbecue areas, both of which are well established with adequate facilities for such enjoyment. [42] The licence granted to Longboards permits the playing of amplified music from 10:00am to 9:00pm Thursday, Friday, Saturday and Sunday. [43] Given the early start time and that both days of the weekend are included, it can be seen that any person within Q1 Resort who might wish to enjoy outdoor time near the pool or in the barbecue area could be affected by unreasonable noise levels emanating from Longboards. [44] The ANE report addresses noise levels in the pool and barbecue areas.36 It noted: The results of the monitoring confirm that, without amplified music, patron noise from the bar was resulting in exceedance of between 17 and 27dB at the poolside tables. At Position 1 (BBQ area) noise from patrons within Q1 was resulting in measured noise levels at the noise limit.”37 [45] The first respondent submitted that: 38 To require consideration of the effect on common areas would have significant implications for OLGR’s ability to regulate noise from licensed venues across the State. The parameters of what common areas should 35 By-laws 1 and 6. 36 Op cit ANE report, paras [46], [47]. 37 Ibid, para [48]. 38 Submissions of first respondent filed 11 November 2016, para [15]. -- 7 of 8 -- 8 be considered as premises occupied by a complainant for the purposes of the Act are impossible to quarantine in a guideline or legislation. The same argument could be made for carparks, gardens, toilet facilities etc. Such an approach is inconsistent with previous decisions and ignores the substantial merits of the case before QCAT. That is that there is no evidence of 85dB(C) from the source causing actual unreasonable noise in the pool and BBQ area during times of actual use. [46] The applicant has not argued that other common property areas such as carparks, gardens and toilet facilities should be considered, nor would such an argument be reasonable in the Tribunal’s view. [47] The Tribunal is satisfied that common property areas such as pool and barbecue areas should be treated as relevant for the purposes of acoustic testing when considering licence applications. [48] The applicant submitted that consideration of the application should be returned to OLGR, on the basis that the existing consideration is flawed because – as OLGR concedes – it proceeded on the basis that there is no ground in the legislation, the regulations or the internal guidelines, for treating common areas under the Body Corporate and Community Management Act 1997 as being relevant.39 [49] In view of the Tribunal’s findings that common areas should be treated as relevant, the decision dated 18 July 2016, which confirmed the original decision granting the variation to Longboard’s licence is set aside and the matter is returned to the Commissioner for reconsideration in accordance with these reasons, under section 24(1)(c) of the QCAT Act. 39 Supplementary submissions for Applicant dated and filed 4 November 2016, para 11. -- 8 of 8 --