Cooper & Ors v Commissioner for Liquor and Gaming & Anor [2016] QCAT 67

CITATION: Cooper & Ors v Commissioner for Liquor and Gaming & Anor [2016] QCAT 67 PARTIES: Peter Cooper Sandra Cooper Vladimir Lipsky Raewyl Lipsky Ian Clark Carol Clark Lindsay Crutch Cathie Crutch Thomas Quinn Frances Quinn (Applicants) V Commissioner for Liquor and Gaming (First Respondent) Blackbird Bar & Restaurant Pty Ltd (Second Respondent) APPLICATION NUMBER: GAR162-14 MATTER TYPE: General administrative review matters HEARING DATE: 23, 24 March 2015 HEARD AT: Brisbane DECISION OF: Member Deane DELIVERED ON: 3 May 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The reconsidered decision dated 30 January 2015 to grant a permanent extended trading hours approval is confirmed subject to the amendment of the applicable noise conditions as follows: a. The noise conditions for the period 10:00pm to 10:00am are: Exclusive Lounge Bar 100 dB(C) Deck – North 91 dB(C) Deck – South 85 dB(C) Restaurant Dining 99 dB(C) -- 1 of 36 -- 2 b. The external glass panels to the north of the restaurant area are to be closed when amplified entertainment or music is in progress in the restaurant area after 1:00am. CATCHWORDS: ADMINISTRATIVE REVIEW – LIQUOR AND GAMING REGULATION - APPLICATION TO REVIEW A DECISION – decision to grant application for extended trading hours approval – where decision reconsidered and amended – - whether extended trading hours approval should be granted - whether acoustic report recommendations should be adopted or whether report is so flawed it should be disregarded and default conditions imposed Acts Interpretation Act 1954 (Qld), s 14A, s 14B Liquor Act 1992 (Qld), s 3, s 4, s 21, s 30, s 33, s 34, s 42A, s 46, s 84, s 85, s 86, s 88, s 103G, s 105, s 105A, s 107C, s 113, s 116, s 117, s 118, s 119, s 119A s 121, s 128B, s 128C, s 132, s 138, s 144, s 154, s 187, s 201 Liquor Regulation 2002 (Qld), s 4, s 40 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 23, s 24, s 28 Broad v Brisbane City Council & Anor [1986] 2 Qd R 317 Clark & Ors v Chief Executive LLD [2007] QCCTL 7 Dasreef Pty Limited v Hawchar [2001] HCA 21 Kehl v Board of Engineers [2010] QCATA 58 Foster v Hunter New England Area Health Service [2010] NSWCA 106 Laidlaw v Queensland Building Services Authority [2010] QCAT 70 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Queensland Building and Construction Commission v Mudri [2015] QCATA 78 Staddon & Ors v Chief Executive, Department of Employment, Economic Development and Innovation & Anor [2011] QCAT 258 Wilson v Chief Executive, Liquor Licensing Division, Tourism, Fair Trading & Wine Industry Development & Anor CCT [2006] LR005-06 -- 2 of 36 -- 3 APPEARANCES: APPLICANTS: Peter Cooper Sandra Cooper Vladimir Lipsky Raewyl Lipsky Ian Clark Carol Clark Thomas Quinn Frances Quinn RESPONDENTS: Commissioner for Liquor and Gaming (First Respondent) Blackbird Bar & Restaurant Pty Ltd (Second Respondent) REPRESENTATIVES: APPLICANT: Peter Cooper and Sandra Cooper, represented by Mr Cooper Vladimir Lipsky and Raewyl Lipsky, represented by Mrs Lipsky (23 March 2015) Ian Clark and Carol Clark, represented by Mrs Clark Thomas Quinn and Frances Quinn, represented by Mr Quinn RESPONDENTS: Commissioner for Liquor and Gaming, First Respondent represented by Mr Robert Lovrincevic, Legal Officer, Office of General Counsel, Department of Justice and the Attorney General Blackbird Bar & Restaurant Pty Ltd, Second Respondent, represented by Mr Matthew Jones, Director, Liquor & Gaming Specialists Pty Ltd REASONS FOR DECISION [1] Blackbird Bar & Restaurant, situated at 123 Eagle Street, Brisbane was granted a permanent extended trading hours approval on 2 April 2014.1 [2] Section 84 of the Liquor Act 1992 (Qld) (Liquor Act) provides: An extended trading hours approval authorises the licensee who is the holder of the approval to sell liquor on a regular basis under authority of the licence 1 Copy of the Licence issued 2 April 2014 forms Exhibit 1, p 504 – p 507. -- 3 of 36 -- 4 that relates to the licensed premises for which the approval is granted subject to this Act at the times, and subject to the conditions, stated in the approval. [3] The Coopers, Clarks and Quinns reside nearby to the north of the licensed premises at Admiralty Towers II, Queen Street, Brisbane. The Lipskys and the Crutchs reside at Kangaroo Point, across the Brisbane River to the east of the licensed premises. They each submitted objections to the Commissioner in response to advertising for an extension to trading hours.2 [4] The Applicants have sought review of the Commissioner’s decision. [5] Previous licensees for premises at this location have held a commercial hotel licence or its predecessor, a General Licence, since 28 September, 2006. At that time, the premises were known as ‘Michael’s Restaurant’ and were licensed to trade from 10am to 1am Monday to Sunday. [6] On 21 December 2007, the licence was transferred and the premises became known as ‘Rugby Quay’. The premises maintained a licence to trade until 1am until 1 January 2009 when the extended trading hours’ approval was cancelled, because the relevant additional fee was not paid and thereafter it was licensed to trade until midnight. [7] The licensed premises have been altered from that operated as Rugby Quay. Rugby Quay comprised a plaza level and upper plaza level. Blackbird’s premises are only situated on the upper plaza level. In addition, the northern deck has been somewhat expanded so that more patrons are able to use that area. In comparison to outdoor areas of other venues in the vicinity the north and south decks are not very large. [8] A matter of significant contention is that the proposed noise limits for external areas are significantly higher than the conditions previously applicable.3 The evidence is, and I accept, that since 17 November 2010, the premises were authorised to conduct amplified entertainment outdoors. [9] At the time of the application to transfer the licence: a) specific condition 1004633 provided that: Noise emanating from the external area of the premises before 10:00pm including amplified or non-amplified noise and patron noise must not exceed 86 dB(C), fast response, when measured approximately 3 metres from the primary source of the noise. b) after 10pm specific condition 1004663 applied, which imposed a limit of 82 dB(C) in the same terms. [10] The acoustic report, which supported these particular conditions, is not before me. 2 Liquor Act 1992 (Qld), s 119. 3 Exhibit 1, p 89 – p 90. -- 4 of 36 -- 5 [11] It is not disputed that the building in which the premises are located was altered to include the upper plaza level since nearby residences at Admiralty Towers II were constructed. [12] The Tribunal is empowered to review decisions of the Commissioner in relation to the grant of an extended hours’ approval.4 [13] The Applicants’ Application specifically sought: a) to set aside the Commissioner’s decision; b) for the extended trading hours to be refused; c) for standard conditions LL0045 and LL2996 and Specific Conditions 34599387 and 34599448 to be revoked; d) the licence be subject to a condition in the following terms ‘Noise emanating from entertainment, music or related activities must not exceed 75 dB(C), fast response, when measured approximately 3 metres from the source of the noise’; e) the trading hours be reinstated to close at midnight each day; f) Specific Conditions 31640289 and 316403810 be reinstated. [14] The Applicants’ Application sets out numerous respects in which, it is alleged, that the Commissioner erred in making the decision including that the Commissioner did not afford procedural fairness due to his refusal to 4 Liquor Act 1992 (Qld) (Liquor Act), s 21(1)(e). 5 Liquor may not be sold for consumption off the licensed premises after 12 midnight or be taken away from the premises after 12:30am. This condition was imposed as part of the decision to grant an extended trading hours approval to 1am. Exhibit 1, p 617. 6 Conditions LL301 and LL303 to LL311 apply only on nights the premises trades beyond 3:00am. 7 Non-amplified entertainers or portable public address systems located in either Deck- North or Deck-South area must be directed to face back into the building and away from the Brisbane River at all times. A condition in these terms was imposed as part of the decision to approve the alteration of premises and change in licensed area on 28 March 2014. 8 Sets out the noise limits. A condition in these terms was imposed as part of the decision to approve the alteration of premises and change in licensed area on 28 March 2014. 9 Speakers used to amplify entertainment, music noise, or non-amplified entertainers must not be located in the outdoor/verandah/patio area of the premises. Office of Liquor and Gaming Regulation (OLGR) Guideline 16 provides that a condition of this type is to be imposed unless an acoustic report includes a recommendation for outdoor amplification. Condition 3164028 formed part of the licence issued 27 February 2014 to trade to 1am, Exhibit 1, p 420. The Commissioner contends, and I accept, it remained on the licence in error as it should have been removed when conditions 3164040 and 3161042 were imposed on 17 November 2010 because they are inconsistent. 10 The doors to the balcony area from the function room are to remain closed at all times that entertainment is being conducted in the function room. Condition 3164038 formed part of the licence issued 27 February 2014 to trade to 1am, Exhibit 1, p 420. This condition was originally imposed when a function room was located on the plaza level, which no longer forms part of these licensed premises. Having regard to the floor plan at Exhibit 1, p 371-p 372 I accept its continued imposition was in error. -- 5 of 36 -- 6 allow objectors to consider and make submissions in relation to acoustic reports submitted by Blackbird. [15] Since commencing these proceedings, the Applicants have made submissions in relation to the acoustic reports. [16] Issues of procedural fairness were also raised in relation to the reconsideration of the decision. As the merits review continued after the reconsideration and further submissions were made and a hearing was held, I do not consider these points further. [17] The purpose of the review is to produce the correct and preferable decision.11 In review proceedings before the Tribunal it is not necessary to demonstrate such errors, as the Tribunal reconsiders the matter afresh12 and there is no presumption that the decision maker’s decision is correct.13 [18] The Applicants’ Application14 states that it is both the grant of the extended trading hours’ approval and the conditions in the licence, set out in the decision of 2 April 2014, which they seek to review. [19] At the commencement of the hearing on 23 March 2015, Mrs Lipsky appeared and informed me that Mr and Mrs Lipsky relied upon their written submissions15 and the submissions of the other applicants and requested, and I permitted them, to take no further part in the hearing. There was no appearance by Mr and Mrs Crutch. [20] The Tribunal has previously accepted that an applicant in review proceedings does not bear an onus of proof, which would apply in civil proceedings. An applicant does not need to show that the matters contended are more probable than not but the Tribunal must be satisfied that:16 the provision under consideration can be invoked on the information or material before it. [21] The Appeal Tribunal has recently confirmed this approach.17 [22] It is necessary to weigh the evidence before me in this light. [23] Mr Quinn submitted that the three primary questions to be answered are: a) Was the application competent due to the licence suspension? b) What noise conditions should be applicable before and after 10pm? 11 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20(1). 12 Ibid, s 20(2). 13 Kehl v Board of Engineers [2010] QCATA 58. 14 At Part B. 15 Mrs Lipsky did not specify the dates of their submissions. The only submissions by the Lipskys I have located are those contained in the Application and their objection set out in Exhibit 1, p 156 – p 157. 16 Laidlaw v Queensland Building Services Authority [2010] QCAT 70, at [23]. 17 Queensland Building and Construction Commission v Mudri [2015] QCATA 78. -- 6 of 36 -- 7 c) Should the premises be able to open to 3am Sunday – Thursday and to 5am Friday and Saturday? What is the scope of the reviewable decision? [24] It is helpful to set out some background. [25] Under cover of a letter dated 2 September 201318 Blackbird applied separately to: a) transfer the liquor licence;19 b) change the name of the premises;20 c) make alterations to the premises and change the licensed area to extend the north balcony;21 d) extend the trading hours to 1am seven days a week;22 e) extend the trading hours to 3am Sunday to Thursday and to 5am Friday and Saturday.23 [26] The Commissioner made separate decisions in respect of these applications. [27] The chronology is as follows: a) 17 September 2013 - applications received by the Office of Liquor and Gaming Regulation (OLGR) b) 9 October 2013 - decision to waive advertising for 1am extended trading hours application24 c) 23 October 2013 - advertising commenced25 d) 20 November 2013 – last day for objections to advertised application e) 3 December 2013 – licence transfer approved26 and suspension under s132(d)(i) of the Liquor Act ended f) 4 December 2013 - alterations application conditionally approved subject to an acoustic report and inspection27 and consequently 18 Exhibit 1, p 1a – p 1e. 19 Liquor Act, s 113; Exhibit 1, p 1b. 20 Liquor Act, s 144, a change of name requires the Commissioner’s prior approval; Exhibit 1, p 1d. 21 Liquor Act, s 154, the Commissioner’s prior approval is required for alterations to or the rebuilding of licensed premises and any change or increase of the area of the licensed premises; Exhibit 1, p 1b, p 517-p 520, p 521-p 526. 22 Exhibit 1, p 1c, p 615 – p 617. 23 Ibid, p 1d, p 469 – p 498. 24 The Commissioner may waive the publication and display requirements; Liquor Act, s 118(4); Exhibit 1, p 75. 25 Exhibit 1, p 198. 26 Ibid, p 530, p 615. 27 Ibid, p 533 – p 535. -- 7 of 36 -- 8 Blackbird was not permitted to trade until the approval was unconditional28 g) 17 December 2013 – objections conference held29 h) 4 February 2014 – extended trading hours’ approval to 1am granted (1st ETH decision).30 A copy of the licence printed on 27 February 201431 sets out the trading hours as 10.00am to 01:00 am Monday – Sunday and the conditions then applicable. i) 27 February 201432 - application for alterations and application for change to licensed area were granted and trading suspension was lifted with the acoustic report being assessed. j) 28 March 2014 – acoustic assessment finalised and noise conditions imposed as part of application for alterations and application for change to licensed area were advised.33 A copy of the licence printed on 28 March 201434 sets out the trading hours as 10.00am to 01:00 am Monday – Sunday and the conditions then applicable, including specific conditions 3454963, 3455404 and 3455407 as to noise. k) 2 April 2014 – 2nd extended trading hours’ approval granted35 (2nd ETH decision). A copy of the licence issued on 2 April 201436 sets out the further extended trading hours and the conditions then applicable, including specific conditions 3459944 in the same terms as 3454963, specific condition 3459936 in the same terms as 3455404 and specific condition 3459938 in the same terms as 3455407 as to noise. As highlighted in sub – paragraph (i) above these conditions were all originally imposed upon the granting of the application for alterations and application for change to licensed area. Are the noise conditions applicable before and after 10pm reviewable? [28] The Commissioner contends that the Applicants are not entitled to apply to review the decision to vary the licence conditions because they do not satisfy s 30(1)(a)(i) of the Liquor Act, as they did not make a ‘submission or objection in the proceeding in which the decision was made.’ [29] The Applicants made submissions or objections in response to the application for extended trading hours’ approval not the applications to vary the licence conditions.37 The terms of the approved advertisement of the application, for which objections could be made, are clear in this regard.38 28 Liquor Act, s 154. 29 Exhibit 1, p 224 – p 228. 30 Ibid, p 617. 31 Ibid, p 420 – p 421. 32 Ibid, p 573. 33 Ibid, p 583 – p 588. 34 Ibid, p 587 – p 588. 35 Ibid, p 458. 36 Ibid, p 504 – p 507. 37 Application for alterations and to change the licensed area. 38 Exhibit 1, p 91. -- 8 of 36 -- 9 [30] I find that the decisions to approve the alterations and to change the licensed area and the imposition of specific conditions as part of those decisions are not reviewable in this proceeding. For this reason, I do not consider further the Applicants’ submissions, that it was not appropriate to transfer licence conditions to new areas such as the extended north deck. [31] The Commissioner contends that the acoustic report and the noise condition recommendations were provided, and therefore conditions imposed, as part of the alterations application, which does not form part of this review. Blackbird contends that the extended trading hours’ approval application was not required to be accompanied by an acoustic assessment39 because sections 116 to 118 of the Liquor Act do not expressly require it. [32] It is true that the noise conditions recommended and imposed as part of the alterations application would be applicable, whether or not the extended trading hours’ approval the subject of this review was sought, because the recommendations were made for trading before 10pm and after 10pm until closing, which is in accordance with Guideline 50.40 [33] A difficulty with the respondents’ submissions is that the form submitted for the application for extended trading hours specifically provided, that an acoustic report was to be provided, because the premises were not within a special entertainment precinct.41 I accept that a form would not, of itself, override the legislative framework. [34] Mr Quinn referred me to the requirement in the regulations that an application for a licence relating to premises where entertainment is to be provided is to be accompanied by a written assessment of the expected acoustic qualities42 and that the Commissioner may require a report ‘about the acoustic qualities of premises, when the premises are complete’ where noise from any source is likely to be in excess of 75db(C).43 Blackbird contends that these provisions only relate to an application for a licence as distinct from an application for an extended trading hours approval. [35] In any event, noise and relevant conditions to minimise the impact of noise on amenity and on the health of the population of the locality or public also form part of the matters, which must be considered in deciding to grant an extended trading hours’ approval and an acoustic report assists that consideration.44 The acoustic report was before the Commissioner and is before me. [36] Blackbird’s Community Impact Statement, which is required by section 116 of the Liquor Act for such an application, expressly relies upon Blackbird engaging an acoustic engineer and acoustic testing to address the likely 39 Exhibit 12, at [15]. 40 Exhibit 1, p 597. 41 Ibid, p 4. 42 Liquor Regulation 2002 (Qld), s 4(2)(d). 43 Ibid, s 4(3). 44 Liquor Act, s 116, s 121. -- 9 of 36 -- 10 health and social impacts and to draw the conclusion that ‘the operation of this premises until 3.00am and 5.00am will not have any adverse impact upon the locality.’45 [37] In reconsidering the decision, I am required to consider whether the approval ought to be given and upon what conditions.46 [38] I am not satisfied that I am excluded from considering: a) whether noise conditions imposed as part of the alteration of premises application remain appropriate for the premises when trading later; and b) the acoustic report, which is the foundation for those conditions. [39] I accept, that if I found that the extended trading hours’ approval ought not to be granted, that I have no jurisdiction to amend the noise limits applicable to the licence prior to the extended trading hours’ approval decision being made. Is the decision to extend trading hours to 1am reviewable? [40] I find that the decision to grant an extended trading hours’ approval to 1am is not reviewable in this proceeding and that I have no power to order that trading hours to midnight be reinstated as sought47 nor to revoke the imposition of standard condition LL004 which formed part of the 1st ETH decision. [41] In considering whether the 2nd ETH decision should be set aside, amended or confirmed and the appropriate conditions to apply there is, in my view, no reason why standard condition LL00448 would not remain appropriate to be imposed upon the premises when trading later. [42] The prior decisions to waive the advertising requirements and to grant the 1st ETH approval means that the 2nd ETH decision only related to approval to extend the trading hours from 1am to 3am Sunday to Thursday and from 1am to 5am on Friday and Saturday. [43] The Applicants have not expressly applied to review the 4 February 2014 decision although the original relief sought included reverting the trading hours to midnight. Mr Quinn appears to concede that this decision is not subject to review in this proceeding49. There is evidence that those attending the objections conference50 were informed, that there was a 45 Exhibit 1, p 18. 46 Liquor Act, s 107C. 47 Set out at [13](e) of these reasons. 48 Liquor may not be sold for consumption off the licensed premises after 12 midnight or be taken away from the premises after 12:30am. 49 Exhibit 4, p 20 at [150]. 50 Attendees included the Clarks, the Quinns, Mr Lipsky and Mr Crutch; Exhibit 1, p 226; The Clarks were the authorised representatives of the Coopers; Exhibit 1, p 222. -- 10 of 36 -- 11 separate extended trading hours’ application to 1am for which advertising had been waived.51 [44] The evidence shows, and I accept, that the 1st ETH approval application was progressed separately and that relevant consultation with police52 and council53 was undertaken. [45] The Commissioner submits54 that it is potentially open to review both decisions because the advertising erroneously indicated trading was restricted to midnight and the letter advising the decision of 2 April 2014 broadly stated the approved trading hours rather than the respect in which they had been extended. [46] As to the first point, at the time advertising commenced the stated trading hours were correct, although by this time a decision to waive advertising had been made in respect of the 1st ETH application. However, the application was still being assessed and was not approved until 4 February 2014. [47] I do not accept the second point. The letter to the objectors expressly stated that the premises held an approval to trade to 1am55. [48] There is nothing in the legislative framework, which has been brought to my attention, which prohibits a concurrent application. In the circumstances, I am not satisfied that the 4 February 2014 decision is reviewable in these proceedings. [49] I note that Guideline 50 provides that acoustic reports should contain no more than two time period recommendations i.e. one noise limit prior to 10pm and one noise limit after 10pm and that the standard conditions reflect these periods. To the extent that I confirm the 2nd ETH decision and determine what I regard are appropriate noise conditions they will also apply to trading to 1am such that the 1st ETH decision may effectively be modified. What evidence is to be considered? [50] The review is to be conducted by a reconsideration of the evidence before the Commissioner when the decision was made56 unless leave is granted for the review to be decided on new evidence.57 If leave is granted, the Tribunal is to adjourn the proceedings to allow the Commissioner to reconsider the decision and allow for further submissions by affected persons.58 51 Exhibit 1, p 225. 52 Ibid, p 608 – p 609, p 614. 53 Exhibit 1, p 610 – p 611. 54 Exhibit 10 at [34] – [39]. 55 Copies form Exhibit 1, p 469 – p 498; see page 1 of each letter, 3rd dot point. 56 Liquor Act, s 33. 57 Ibid, s 34. 58 Ibid. -- 11 of 36 -- 12 [51] By decision dated 2 December 2014, I gave leave for specified additional evidence to be considered. On 8 December 2014, I adjourned the proceedings to allow the Commissioner to reconsider the decision and made directions for submissions.59 [52] By decision dated 30 January 2015, the Commissioner affirmed the 2nd ETH decision subject to the noise conditions in the dining room being reduced to the same levels as the exclusive lounge bar as follows 10:00 am to 10:00 pm – 111 dB(c) 10:00 pm to 10:00 am – 106 dB(c) What are the consequences of the reconsideration as to evidence to be considered and law to be applied? [53] Blackbird submitted that in the course of the reconsideration the Commissioner had taken into account further ‘new evidence’,60 which was not the subject of a further application for leave and that such evidence should not be considered in this review. This evidence consists of: a) The risk assessment memo of 23 January 2015;61 b) Attachment A to the risk assessment memo;62 c) Statements of fact contained in the memo of 23 January 2015 not otherwise in evidence;63 d) Statements of fact contained in the memo of 27 January 201564 not otherwise in evidence. [54] The Commissioner submitted, and I accept, that it was proper to document the reconsideration. The OLGR officers went beyond documenting the reconsideration and created new evidence by attending the premises and undertaking interviews. Given the scheme of the Liquor Act and the stage of these proceedings, it would have been preferable to limit the documentation to an analysis of the new evidence for which leave had been granted rather than conduct interviews. The Commissioner submitted, and I accept, that it was necessary to investigate matters raised by the evidence, for which leave was granted, to ensure a proper reconsideration of the decision. [55] Another related preliminary matter relates to which version of the Liquor Act applies, because the Liquor Act was amended since 2 April 2014. [56] The Liquor Act provides that the Tribunal is to review the decision in accordance with the same law that applied to the making of the original 59 Liquor Act, s 34(2). 60 Ibid, s 34(3). 61 Exhibit 1, p 829 – p 831. 62 Ibid, p 832 – p 839. 63 Exhibit 13, [16]. 64 Exhibit 1, p 671 – p 670; Exhibit 13, [16]. -- 12 of 36 -- 13 decision.65 The law that applied on 2 April 2014 was the Liquor Act, which was current as at 28 March 2014.66 [57] The Tribunal invited the Commissioner to reconsider the decision67 and as a result, the Commissioner amended the decision68. Sections 33 and 34 of the Liquor Act do not expressly limit the evidence and state the law applicable if the tribunal review continues after the reconsideration, where the reconsideration results in an amended decision. [58] In contrast, the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that the Commissioner’s decision, as amended, is taken to be the reviewable decision under the QCAT Act and the enabling Act69 and the review is to continue unless withdrawn.70 [59] I therefore find that, upon a proper construction, the express provisions of the QCAT Act apply and the review is to be conducted on the evidence before the Commissioner and the law applicable as at 30 January 2015, being the date that the decision, as amended was made. The law that applied on 30 January 2015 was the Liquor Act, which was current as at 19 December 2014.71 I find that it was not necessary for a further ‘new evidence’ application to be made. [60] The Commissioner’s decision, as amended, approved extension to trading hours from 1 am to 3 am, Sunday to Thursday and from 1am to 5am, Friday and Saturday and imposed a number of standard and specific conditions. The decision as amended was substantially the same decision as that originally made by the Commissioner. [61] In such a review proceeding I may confirm or amend the decision, set aside the decision and substitute my own decision or set aside the decision and return it to the Commissioner with or without directions.72 Was the application for extended trading hours ‘incompetent’ because the licence was suspended? [62] I find that it is open to consider and decide the ETH application and that the ETH application was not ‘incompetent’, because the licence was suspended at the time the application was made. [63] The Applicants submit that because the licence was suspended, at the time the application was made73, it was not open to the Commissioner to consider and decide the application. Relevantly they submit that a 65 Liquor Act, s 33(1)(b). 66 Amendments included 2013 Act No.55. 67 QCAT Act, s 23(1). 68 Ibid, s 23(2). 69 Ibid, s 23(4)(a). In this case the enabling Act is the Liquor Act. 70 Ibid, s 23(4)(b). 71 Amendments included 2014 Act No. 42. 72 QCAT Act, s 24(1). 73 17 September 2013. -- 13 of 36 -- 14 suspended licence ‘ceases to be in force for the period of suspension’74 and ‘a licence does not have effect during a period for which it is suspended’75. [64] At the time the ETH applications were made, the licence was suspended because the previous licensee’s business ceased to trade due to insolvency and the owner of the premises preserved the licence while seeking a new lessee76. Subsequently Blackbird negotiated to lease part of the then licensed premises. [65] The Applicants also point to a subsequent ‘suspension’ and Mr Jones’ email urging the lifting of the ‘suspension’ notation on the licence.77 They contend that Mr Jones’ urging is evidence of the validity of their submission. The Commissioner contends that the notation was an error because by operation of the Liquor Act Blackbird was unable to trade until the application for alterations was finalised so there was no requirement to suspend the licence. I accept the Commissioner’s submission on this matter. Mr Jones’ concern about the incorrect suspension notation appears justified. He set out in his email a number of commercial issues for Blackbird, which arise from the incorrect suspension notation. [66] The error has also resulted in an additional point of contention available to be ventilated and therefore cost and time in these proceedings, the potential for which Mr Jones may have been aware, given that the extended trading hours’ application had been the subject of a number of objections. [67] The starting point is to consider the ordinary meaning of the relevant Liquor Act provisions. [68] The Acts Interpretation Act 1954 (Qld) defines ‘ordinary meaning’ to mean78 the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose of the Act [69] Section 14A of the Acts Interpretation Act 1954 (Qld) provides that an interpretation that best achieves the legislation’s purpose is to be preferred. [70] The Liquor Act sets out a number of ‘main purposes’79. These include: (a) to regulate the liquor industry, and areas in the vicinity of licensed premises, in a way compatible with— (i) minimising harm, and the potential for harm, from alcohol abuse and misuse and associated violence; and … (ii) minimising adverse effects on the health or safety of members of the public; and (iii) minimising adverse effects on the amenity of the community; and 74 Liquor Act, s 138. 75 Ibid, s 201(2). 76 Ibid, s 132(d)(i). 77 Exhibit 1, p 557. 78 Acts Interpretation Act 1954 (Qld), s 14B. 79 Liquor Act, s 3. -- 14 of 36 -- 15 (b) 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; and … (d) 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 this Act; and (e) to regulate the sale and supply of liquor in particular areas to minimise harm caused by alcohol abuse and misuse and associated violence;… [71] Either an applicant for a licence or an existing licensee may apply to the Commissioner for an extended trading hours’ approval for premises that are, or are to be, the licensed premises.80 Having regard to the ordinary meaning of section 85 of the Liquor Act, it is clear that it is not necessary for a ‘valid’ licence to exist or be held by the applicant at the time of making an application for an extended trading hours’ approval. Where an applicant for a new licence applies it does not hold a ‘valid’ licence as it does not then exist. [72] I find that the main purpose, set out in section 3(d) of the Liquor Act, is not best achieved by interpreting the sections as to suspended licences and section 85 in a way, which would prevent an applicant for a licence, which was suspended due to no fault of the applicant, from making an application for an extended trading hours’ approval. To interpret the Liquor Act in the way contended for would not provide a flexible and practical system and would impose considerable formality and technicality. Should the Application for Extended Trading Hours Approval be granted and if so, upon what conditions? [73] I find that the Application for permanent extended trading hours approval ought to be granted. In these circumstances, it is necessary to also decide what conditions are appropriate to be imposed for trading after 1am. In view of the terms of Guideline 50, I consider the noise conditions, which are to be imposed after 10pm. [74] I find that the conditions imposed by the Commissioner in his reconsidered decision of 30 January 2015 are appropriate with the following amendment: a) the noise conditions for the period 10:00pm to 10:00am are: Exclusive Lounge Bar 100 dB(C) Deck – North 91 dB(C) Deck – South 85 dB(C) Restaurant Dining 99 dB(C) 80 Liquor Act, s 85(1). -- 15 of 36 -- 16 b) the external glass panels to the north of the restaurant area are to be closed when amplified entertainment or music is in progress in the restaurant area after 1am. [75] I accept as Mr Quinn points out the ‘onus’ is not on the Applicants to complain and rely upon the enforcement or variation provisions if the conditions imposed result in disturbance. A decision based upon the evidence is required whether to grant the approval and upon which conditions, that minimise the impact on amenity, minimise adverse effects on health and safety and minimise annoyance and disturbance in the locality and that balance the interests as between the various users of the locality. [76] The Applicants contend that: a) Blackbird does not need the extended trading hours approval because there is some evidence that it does not trade until the approved closing time; and b) there are other late night premises in the vicinity so there is no community need that is required to be addressed. [77] I find that these are not factors in favour of refusing the grant of the extended trading hours’ approval. [78] There is no express requirement in section 86 of the Liquor Act for Blackbird to demonstrate ‘need’ for an approval sought under section 86(1). In contrast, section 86(3) expressly imposes a requirement for applications under section 86(2) and section 86(2A) to demonstrate a community need and section 86(5) expressly imposes a similar requirement for applications under section 86(4). [79] There are two other venues in the Riverside Centre precinct, which are licensed to trade until 5am. There is another venue on the riverfront which is licensed to trade until 3am. I accept that Blackbird is seeking flexible trading hours to meet patron expectations of venues in this precinct and may be at a commercial disadvantage if the 2nd ETH decision is not confirmed. [80] The Applicants contend that: a) a decision to grant an extended trading hours approval is unjustified as Blackbird has not proved that it will not have deleterious effects having regard to: i) the undue offence, annoyance, disturbance and inconvenience to persons residing in the locality and to persons going to and from an existing place of worship; ii) harm from alcohol abuse and misuse and associated violence; iii) adverse effects on the health and safety of members of the public; iv) adverse effects on the amenity of the community. -- 16 of 36 -- 17 b) the facts justify the refusal of the permanent extended trading hours and maintenance of specific condition 3164028, prohibiting speakers, music noise or non - amplified entertainers in the outdoor areas. c) the evidence shows a serious risk of an increase in loss of amenity within the locality including associated with undue offence, annoyance, disturbance and inconvenience to residents, harm from alcohol abuse and misuse and associated violence, adverse effects on the health and safety of members of the public and adverse effects on the amenity of the community. d) upon a proper application of Clark & Ors v Chief Executive LLD81 the extended trading hours’ approval ought not to be allowed or if allowed that the noise limit imposed should be 75dB(C) because the acoustic report was flawed and ought not be relied upon. Have the pre-requisites been satisfied? [81] I find that the pre-requisites have been substantially satisfied. [82] There are a number of pre-requisites to granting an application for an extended trading hours’ approval. These requirements are set out in s 105,82 s 105A,83 s 116,84 s 117,85 s 118,86 s 119,87 s 119A88 and s 12189 of the Liquor Act. [83] It is not disputed that: a) the premises are located within a designated extended trading hours’ precinct90 and are not subject to the moratorium on applications for extended trading hours approvals. b) there was compliance with the requirements of s105 and s105A91. c) the Brisbane City Council and the Police were advised of the application as required by s117(1)(a) and (b).92 The Police did not object to the granting of the application.93 No substantive response was received from the Council.94 81 [2007] QCCTL 7 (also referred to as Plaza Deli). 82 Relating to form, particulars and payment. 83 Relating to risk assessed management plan. 84 Relating to a community impact statement. 85 Relating to notifying the local government authority and the police to allow them to comment on the reasonable requirements of the public in the locality or object on the grounds that the amenity, quiet or good order of the locality would be lessened. 86 Relating to advertising the application. 87 Relating to objections by members of the public. 88 Relating to notifying the Minister. 89 Relating to matters to which regard must be had. 90 Liquor Regulation 2002 (Qld). 91 Risk Assessment Management Plan is found at Exhibit 1, p 40- p 73. 92 Exhibit 1, p80 – p91. 93 Ibid, p 96. 94 Ibid, p 102. -- 17 of 36 -- 18 d) the Minister was notified in accordance with s119A.95 The evidence is, and I accept, that the Minister did not object.96 e) the local Member of Parliament was notified.97 The evidence is, and I accept, that he did not object.98 COMMUNITY IMPACT STATEMENT – SECTION 116 [84] The purpose of the community impact statement is to help the Commissioner, and the Tribunal in the Commissioner’s place, assess the impact on the community if the application is granted having regard to the main purpose set out in section 3(a).99 Section 116(8) sets out the matters it must address. [85] The community impact statement100 provided by Blackbird purports to address all the prescribed matters. [86] The Applicants contend that the community impact statement does not adequately address: a) the likely health and social impacts;101 b) an assessment of the magnitude, duration and probability of the occurrence of the health and social impacts.102 [87] Whilst the community impact statement could have outlined in more detail information as to health and social impacts, I am satisfied that the prescribed matters have substantially been addressed. COMMUNITY IMPACT – SECTION 121 (a) – IMPACT ON AMENITY OF THE COMMUNITY – SECTION 121 (f) [88] Given the projected population and demographic trends and that the application is in respect of an existing licensed premises in a designated extended trading hours’ precinct, I find that the grant would not necessarily have an adverse impact on the locality and community. [89] I also find that the impact can be minimised by appropriate conditions. An extended trading hours’ approval for Blackbird is not inconsistent with the Brisbane City Plan 2000. [90] The concept of ‘amenity’ has been recognised as being broad and flexible and includes the reasonable expectations of the neighbourhood.103 95 Ibid, p 94 – p 95. 96 Ibid, p 455. 97 Ibid, p 92 – p 93. 98 Ibid, p 455. 99 Liquor Act, s 116(7). 100 Exhibit 1, p 8 – p 39. 101 Liquor Act, s 116(8)(c). 102 Ibid, s 116(8)(d). 103 Broad v Brisbane City Council & Anor [1986] 2 Qd R 317. -- 18 of 36 -- 19 [91] OLGR’s assessment concluded that the grant would not necessarily have an adverse impact on the community and recommended certain conditions be endorsed on the licence to minimise the impact on the community.104 [92] The Applicants specifically challenge OLGR’s assessment of the community impact statement. They contend that the community impact statement does not support a conclusion that the premises are suitably attenuated to allow entertainment to be conducted until 5am. I accept that the reasoning for this conclusion by OLGR could be more clear. [93] The Applicants point out that the premises do not have sound lock doors or windows and noise can escape from the outdoor areas. In these circumstances, it is submitted that extended trading hours should not be permitted or restrictive conditions should be imposed. [94] Blackbird seeks to address the health and social impacts at paragraph 7 of the community impact statement.105 Blackbird essentially relies upon the proposed sound management practices and engaging its acoustic engineer, Mr Moore, to ensure the premises are ‘acoustically treated to appropriate standards’106 to address any noise/amenity concerns. [95] Section 4 of the Liquor Act107 relevantly defines amenity of a community or locality to mean: (a) the atmosphere, ambience, character and pleasantness of the community or locality; and (b) the health and safety of persons who live in, work in or visit the community or locality and the comfort or enjoyment they derive from the community or locality. [96] The Tribunal and the Tribunal’s predecessor have recognised that in mixed- use areas some compromise is required108 and that in making decisions under the Liquor Act the presumption is in favour of granting the licensee’s application unless the community impacts cannot be minimised. 109 [97] Leaving the noise limit recommendations to one side, I accept that the other conditions imposed as part of the 2nd ETH decision would assist to lessen or minimise the impact on the community and that they are appropriate. ADVERTISING – SECTION 118 [98] The Applicants contend that the advertising was deficient because of the location of placement of the advertising board and because the 104 Exhibit 1, p 306 – p 313. 105 Ibid, p18 – p25. 106 Ibid, p18, paragraph 7.4. 107 As at 30 January 2015. 108 Plaza Deli [2007] QCCTL 7 at [88]; Wilson v Chief Executive, Liquor Licensing Division, Tourism, Fair Trading & Wine Industry Development & Anor CCT [2006] LR005-06 at [89]. 109 Staddon & Ors v Chief Executive, Department of Employment, Economic Development and Innovation & Anor [2011] QCAT 258 at [31]. -- 19 of 36 -- 20 advertisement referred to an extension of trading hours referencing the then current hours of 10 am to 12 midnight. As highlighted earlier in these reasons the trading hours at the time of advertising were correctly stated because the 1st ETH decision had not, at that time, been made. [99] I am satisfied that there was at least substantial compliance with the advertising requirements110. [100] OLGR: a) notified Blackbird that it was permitted to advertise the application; b) provided to Blackbird the wording of the advertisement; and c) set out other requirements.111 [101] A statutory declaration dated 25 November 2013 contains evidence that the advertising was performed, at least substantially, in accordance with the OLGR requirements.112 OBJECTIONS – SECTION 119 – SECTION 121(b) [102] Objections including from the Applicants in these proceedings were submitted. The grounds were in accordance with section 119(3)(a) – (d) of the Liquor Act. The concerns primarily relate to noise disturbance and late night alcohol fuelled violence and anti-social behaviour. [103] Relevant to a consideration of the ground in section 119(3)(a)113 is that St Vincent’s Hospital, Caritas Care and the Dean of St Stephen’s Cathedral have previously objected to riverfront licensing applications but did not do so on this occasion.114 The evidence is, and I accept that, there are no sensitive facilities within 200 metres of the premises. [104] In relation to the ground in section 119(3)(b) I am satisfied that harm from alcohol abuse and misuse and associated violence will not necessarily increase. [105] Section 128B of the Liquor Act sets out matters, which may be considered when making a decision about the effects of granting an application on health and safety of members of the public and on the amenity of the community. [106] I accept that various forms of public transport serve the Brisbane CBD and that taxi ranks are located nearby Blackbird’s premises. 110 Liquor Act, s118(2), (3)(a), (5), (6). 111 Exhibit 1, p76 – p 79, p 91. 112 Ibid, p 198. 113 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. 114 Exhibit 1, p 949, p 951. -- 20 of 36 -- 21 [107] The Applicants contend that the approval ought not to be granted, because of the cumulative effect of another premises trading late. I am not satisfied that an additional venue with a ETH approval, which is already licensed to trade until 1am and which is marketed as an ‘upmarket’ restaurant and bar, will necessarily increase the incidence of harm, violence, vandalism, nuisance, drunkenness, public urination, vomiting or defecation, disorderly, riotous, threatening, indecent, offensive or insulting behaviour, noisiness or obstruction of a thoroughfare. [108] In this regard, I particularly note that the Police had no objection to the application based on amenity and good order of the locality being lessened. [109] If the ETH approval is not granted, patrons who might engage in such conduct could attend the other nearby venues holding ETH approvals. [110] In accordance with Section 128C, the 2nd ETH decision imposed various conditions to give effect to the main purpose set out in section 3(a). PREVIOUS CONDUCT OF THE APPLICANT IN DISCHARGING DUTIES UNDER THE LIQUOR ACT, ESPECIALLY FOR THE PREMISES FOR WHICH THE APPROVAL IS SOUGHT – SECTION 121(g)(i) [111] The evidence is, and I accept, that: a) Blackbird is part of the Ghanem Group, which holds licences at other Brisbane venues and which have been constructive in addressing complaints raised; b) Blackbird had sought and obtained extended trading hours permits115 prior to the 2nd ETH decision and that the small number of noise complaints had not been substantiated; c) investigations of the premises revealed minor breaches not related to noise complaints. [112] I am not satisfied that these minor breaches are sufficient to warrant a finding that Blackbird will not or is not likely to discharge its duties under the Liquor Act. THE APPLICANT’S ABILITY TO CONTROL THE NOISE AND BEHAVIOUR OF THE NUMBER OF PERSONS EXPECTED TO BE ON OR IN THE VICINITY OF THE PREMISES - SECTION 121(g)(ii) [113] There is no evidence to suggest Blackbird will not be able to control patron noise and behaviour on the premises and when they are dispersing from the premises. [114] The evidence is that the Ghanem Group are experienced licensed premises operators, no such complaints had been recorded prior to 2 April 2014 when 115 Liquor Act, s 103G. -- 21 of 36 -- 22 Blackbird was authorised to trade to 1am or until 5am under temporary permits. [115] I accept that this does not necessarily demonstrate that the noise conditions are appropriate because there is no evidence of the noise levels being emitted on those occasions. However, it is some evidence of responsible management or control of noise and behaviour of patrons. [116] I am satisfied that conditions requiring a noise complaint register, crowd controller conditions and CCTV conditions where the premises trades beyond 3am will assist in this regard. [117] There is no evidence of complaints of this nature at Blackbird’s owner’s other venues. THE SUITABILITY OF THE PREMISES AND ITS FACILITIES FOR THE PURPOSE FOR WHICH THE EXTENSION IS SOUGHT – SECTION 121(g)(iii) [118] I find, having regard to the 2nd acoustic report, that the premises and its facilities are suitable for the extension sought. [119] The evidence is, and I accept, that the premises as refurbished are suitable as an ‘up market’ restaurant and bar. [120] The Applicants contend that the premises are not suitably attenuated to allow entertainment to be conducted until 5am, that extended trading hours and the noise conditions imposed are inconsistent with the stated use. [121] They contend that the principles of Plaza Deli 116 should be applied. They submit that those principles support their contention that the ETH ought not to be granted or granted on the default noise conditions set out in Guideline 16117, including a noise limit of 75dB(C) because the acoustic report was flawed for numerous reasons, including having regard to Guideline 50118 and ought not be relied upon. [122] The Commissioner is empowered to make guidelines119 to inform persons about – (a) the attitude the commissioner is likely to adopt on a particular matter; or (b) how the commissioner administers this Act; or (c) matters that may help persons comply with their responsibilities, or lawfully and appropriately exercise powers, under this Act. [123] Much of the review application related to alleged deficiencies of the acoustic report120 and the appropriateness of Specific Condition 3459944, 116 [2007] QCCTL 7. 117 Exhibit 1, p589 – p590. 118 Ibid, p591 - p600. 119 Liquor Act, s42A(1). 120 Exhibit 1, p341-370, report dated 27 February 2014. -- 22 of 36 -- 23 which was derived from the acoustic report. As amended121 Specific Condition 3459944 provides: Noise emanating from the following areas of the premises including amplified or non - amplified noise and patron noise must not exceed the following limits when measured approximately 3 metres from the source of the noise: i. Exclusive Lounge Bar 10:00 am to 10:00 pm – 111 dB(c) 10:00 pm to 10:00 am – 106 dB(c) ii. Deck- North 10:00 am to 10:00 pm – 101 dB(c) 10:00 pm to 10:00 am – 97 dB(c) iii. Deck- South 10:00 am to 10:00 pm – 99 dB(c) 10:00 pm to 10:00 am – 92 dB(c) iv. Restaurant Dining 10:00 am to 10:00 pm – 111 dB(c) 10:00 pm to 10:00 am – 106 dB(c) [124] In Plaza Deli, evidence was available from an acoustic professional, which called into question the acoustic report provided by the licensee. I note that none of the Applicants, who were also applicants in Plaza Deli, engaged the acoustic professional in that case. [125] The former tribunal in Plaza Deli accepted that the acoustic report was deficient and effectively imposed the default conditions set out in Guideline 16. In doing so, the tribunal made observations about the nature of the premises122 and the incompatibility of the nature of the licence and the noise conditions.123 [126] The circumstances in Plaza Deli are distinguishable from the current circumstances in a number of respects. [127] Unlike the premises in Plaza Deli, Blackbird’s outdoor areas are not completely unenclosed and the areas are elevated resulting in a physical separation from the public boardwalk. The physical separation provides some attenuation of the noise by distance. [128] A distinguishing feature is that Blackbird holds a commercial hotel licence consistent with its operations, not only, as a restaurant but also a bar and a venue providing entertainment as opposed to a cafe providing meals. 121 Decision 30 January 2015. 122 Completely unenclosed outdoor area with no barrier to the public board walk. 123 On premises (meals) licence and amplified entertainment noise limits found to be more suitable for a night club rather than a restaurant. -- 23 of 36 -- 24 [129] Another differentiating factor is that the premises have been licensed to provide amplified entertainment in outdoor areas since at least 17 November 2010 when conditions 3164040 and 3164042 were imposed. While there were apparently inconsistent outdoor conditions, there is evidence before me, which gives some context as to how this arose.124 In contrast, Plaza Deli was determined in circumstances where an application to vary the licence conditions to allow amplified entertainment was submitted a short time after the original application for a liquor licence had been granted upon reaching an agreement that no amplified music was permitted. [130] A further difference is that there was competing acoustic evidence in Plaza Deli. The tribunal preferred the applicant’s acoustic evidence rather than the licensee’s acoustic evidence. In accepting the applicant’s acoustic evidence the tribunal was not satisfied that the applicants would not be unduly impacted if amplified entertainment at the proposed levels were conducted in the outdoor area of the premises.125 The Applicants in this proceeding have not submitted evidence from another acoustic professional. [131] The Applicants contend that the noise levels proposed by the 2nd acoustic report are not compatible with the proposed use. Blackbird’s offering while emphasising food is not just an offering as a restaurant, it is expressly an offering as a bar and a place where entertainment is provided. [132] I am satisfied that noise levels compatible for the proposed use for such a venue would be higher than for premises only to be used as a restaurant or cafe. [133] Guideline 16 states that When granting an application for, or variation to, a liquor licence, the Chief Executive may impose conditions or make a decision based on the sound retention qualities of the subject premises. (emphasis added) [134] It also states that the conditions set out in the guideline ‘may be used’ (emphasis added). [135] The Guideline uses the word ‘may’, which indicates that it is not mandatory. In any event, the concept of a guideline is that it is not mandatory but rather a ‘guide’. [136] I accept that the 2nd acoustic report does not expressly set out in great detail the ‘sound retention qualities’ of the premises. However, it sets out construction details of each area assessed and notes there are no sound locks126 together with details of measurements of sound at identified 124 Exhibit 1, p 556. 125 Plaza Deli at [85]. 126 Exhibit 1, p 347. -- 24 of 36 -- 25 ‘receptor’ locations both when no amplified music was being emitted from the premises and when it was being emitted. [137] Reporting of such measurements is some evidence of sound retention as well as evidence of attenuation of sound by distance. The 2nd acoustic report explained the methodology used by Mr Moore. The speakers from which amplified music was emitted were located as shown in figure 2.127 The speakers were not situated on either Deck-North or Deck-South. All glass panels to the external areas were fully open. [138] Blackbird’s premises consist of internal areas and the south and north decks. The decks are largely open although there are some structures in the nature of ceilings and walls. I accept that the internal areas will have greater sound retention capacity than the largely open outdoor areas. [139] The evidence is that in addition to the glass doors to the decks there are glass panels to the north of the restaurant area. These glass panels were fully open when the acoustic measurements were taken. I accept that because the doors to the deck areas and the glass panels to the restaurant may be open that noise from the internal areas will not be completely retained. [140] Guideline 16 provides that if the acoustic report shows that the premises cannot contain noise having a source noise of 120 dB(Lin) or greater a noise limiter must be installed. Such a condition was imposed by the 2nd ETH decision and in my view, is an appropriate condition to be imposed. [141] Guideline 16 also provides that ‘if the applicant submits an appropriate acoustic report, as outlined in Guideline 50’ conditions determined ‘based on the acoustic report recommendations’ (emphasis added) will be imposed including in relation to outdoor amplification recommendations. The Guideline sets out conditions to be imposed where the applicant for a licence ‘is not prepared to obtain an acoustic report from a qualified acoustic consultant’, which have been referred to in this proceeding as the default noise conditions. [142] Fundamentally, the Applicants contend that the report is ‘fatally’ flawed and therefore the report is not ‘an appropriate acoustic report’. They highlight that the outdoor areas of the premises have no sound retention qualities so that outdoor speakers should not be allowed. Guideline 16 provides that a condition prohibiting outdoor speakers is imposed if the acoustic report does not make a recommendation for outdoor amplification.128 The 2nd acoustic report does make recommendations. [143] The Applicants contend that if the extended trading hours’ approval is granted it should be granted on the default conditions, restricting noise to 75dB(C) and that the previous conditions restricting amplified music should 127 Exhibit 1, p 346. 128 Exhibit 1, p 589. -- 25 of 36 -- 26 be reinstated.129 Mr Quinn acknowledged that in considering this application the outcome was not ‘all or nothing’. He submitted that I might decide to impose a condition to limit the use of the outdoor areas after a particular time. The difficulty with this submission is that there is no specific evidence before me, upon which I might rely to support such a finding. [144] On 28 March 2014, the default noise conditions were removed from the licence as part of the alterations and change of licensed area approvals and noise conditions based on the acoustic report were imposed.130 At this time, other inconsistent Specific Conditions 3164040131 and 3164042132 were also removed. [145] The flaws in the acoustic report relied upon included the failure to: a) allow for the combination of sources of noise from within the premises133 and from other licensed premises134 b) prepare the report as provided for in Guideline 50135 by failing to take into account noise levels at the nearest commercial building136 c) prepare the report as provided for in Guideline 50 by failing to take measurements at the nearest affected locations rather than at a location further away and then calculating levels at closer locations without explaining what steps were taken to attempt to comply with Guideline 50 other than ‘was not possible to....could not be accessed by the consultant’137 d) prepare the report as provided for in Guideline 50 by failing to allow or at least state that an appropriate ‘margin for error’ had been allowed to accommodate the lack of precision inherent in the measurement process138 e) follow in the 2nd acoustic report the methodology set out in the first report139 said to be necessary for accurate measurement without explanation as to why the stated methodology was not followed. Mr Moore’s preliminary report stated: 129 Set out in [13] (f); Exhibit 1, p589. Specific Conditions 3164028 and 3164032 to this affect were conditions imposed in the licence issued on 4 February 2014 (1st ETH decision). See Exhibit 1, p630. Specific Conditions 532865 and 1004563 in the same terms were conditions imposed in the licence applicable at the time of transfer. See Exhibit 1, p89. Specific Condition 3164032 was removed as part of the alteration of licenced premises and change in licenced area application decision. See Exhibit 1, p 573. 130 Exhibit 1, p 587 – p 588. 131 External noise limit before 10pm of 86 dB(C). 132 External noise limit after 10pm of 82 dB(C). 133 Exhibit 2 at [51]. 134 Ibid, at [48]. 135 Exhibit 1, p 591 – p 600. 136 145 Eagle Street at which a restaurant carries on business. 137 Exhibit 1, p 354. 138 Exhibit 2, p 8 at [49]. 139 Exhibit 1, p 323- p 340. -- 26 of 36 -- 27 Once the fitout is completed a comprehensive amplified music noise impact assessment would need to be undertaken, and to accurately determine the noise limits access to a residential level of Riparian Plaza obtained, together with access to Admiralty Tower II. For Kangaroo Point a large tripod (to elevate the microphone to at least 7 meters) could be used in lieu of accessing a residential apartment, or, if available, access to a rooftop deck area.140 f) take measurements at a location, which was not obstructed by vegetation, because the vegetation would act as a noise barrier and increase the attenuation of the noise, which measurements would not be representative of conditions above the tree height and therefore not reliable for other locations g) take measurements in a residential location as distinct from a park h) take measurements in public areas at Admiralty Towers II, which have an unobstructed line of sight to the north of the premises i) take measurements at locations higher than the source j) be a quality assured acoustic consultant k) use equipment recently calibrated l) fully take into account WHO guidelines for community noise and the impact of noise on health m) take into account considerations taken into account in other acoustic reports by the same author n) take into account different environmental conditions at different locations, which lead to the erroneous assumption that background noise levels at Kangaroo Point were applicable at other locations [146] The Applicants have pointed to OLGR records containing statements by staff that they do not have expertise or capacity to challenge the levels in the acoustic report and that OLGR apparently accepted the levels recommended although some staff viewed them as ‘unrealistic’. I observe that whilst the staff may not be formally qualified and ‘accredited’ they will have experience in administering the Liquor Act, including experience of noise conditions imposed on other venues. [147] In these proceedings, both the Commissioner and Blackbird submitted, that in the absence of other contrary ‘expert’ evidence I should accept the evidence in the acoustic report. Mr Quinn referred me to a number of authorities for the proposition that expert evidence, even in the absence of contrary expert evidence, could be rejected where the opinion expressed was not ‘demonstrated and intellectually justifiable by reference to the evidence’.141 140 Exhibit 1, p 338. 141 Exhibit4 at [31]; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; Foster v Hunter New England Area Health Service [2010] NSWCA 106; Dasreef Pty Limited v Hawchar [2001] HCA 21. -- 27 of 36 -- 28 [148] Blackbird contends, and I accept, that the acoustic report is not ‘expert’ evidence as is commonly regarded in court or tribunal proceedings. It is not in a form, which complies with the Tribunal’s Practice Direction.142 [149] In any event, the Tribunal is not bound by the rules of evidence.143 The acoustic report is evidence to be considered and I am required to assess the weight, which can be placed upon it. This includes an assessment of whether the conclusions expressed are reasonably supported by the evidence contained in the report and whether any assumptions made in reaching the conclusions are contrary to other evidence. [150] I accept that just because the acoustic reports are the only direct evidence of noise measurements neither the Commissioner nor I, in the Commissioner’s place, are bound to accept its recommendations. As identified earlier in these reasons Guideline 16 provides that conditions are to be determined ‘based’ on the acoustic report recommendations. This does not mean that the recommendations in the report are necessarily to be adopted without modification. [151] The Commissioner contends that if I am satisfied that the acoustic report is defective that the proper course is to allow Blackbird to continue to trade under the ETH approval and refer the matter back to the Commissioner to reconsider the decision once Blackbird provides a fresh acoustic report.144 [152] I find that the 2nd acoustic report is not so flawed as to warrant it being completely disregarded. It provides some evidence of noise measurements and the impact of intrusive noise at certain locations. It provides some guidance as to noise limits, which if complied with are likely to result in compliance with Regulation 40(b) and are likely to minimise impact on amenity and disturbance. [153] However, I am not satisfied that the noise levels recommended in the 2nd acoustic report are necessarily such as to permit Blackbird to comply with Regulation 40 in the period after 10pm and to ensure that the impact on amenity and disturbance is minimised. [154] When assessing the impact of noise at Admiralty Towers II Mr Moore states that it ‘can only be affected’ by noise from Deck- North. This seems to ignore that noise from the restaurant area, may ‘escape’ from the opened glass panels to the north. The evidence is, and I accept, that there is a direct line of sight from the glass panels to the restaurant to Admiralty Towers II. When considering the combined noise from both decks the consultant has made a + 3 dB adjustment for each frequency in a full octave band but such an adjustment has not been made in respect of the combined noise from the restaurant area and Deck- North. 142 No 4 of 2009. 143 QCAT Act, s 28(3)(b). 144 Exhibit 10 at [115]. -- 28 of 36 -- 29 [155] If a +3 dB adjustment is made to Mr Moore’s analysis for the impact on Admiralty Towers II of noise from the Exclusive Lounge Bar his recorded figure of 111 dB(C) would be reduced by 3 to 108 dB(C). His recommendation of 106 dB(C) based on the impact at other locations would still apply. [156] If a +3 dB adjustment is made to Mr Moore’s analysis for the impact on Admiralty Towers II of noise from the Deck- North his recorded figure of 102 dB(C) would be reduced by 3 to 99 dB(C). His recommendation of 97 dB(C) based on the impact at other locations would still apply. [157] It is not possible for me to perform the same analysis in respect of the impact on Admiralty Towers II of noise from the restaurant because Mr Moore did not record a figure. He concluded that the impact would be no worse that the impact on Aurora Towers to the north west, which he recorded as 108 dB(C). If a +3 dB adjustment is made to that figure the recommendation would be reduced to 105 dB(C), which would result in an adjustment to his recommended levels and to the level set by the reconsidered decision. [158] The text of Mr Moore’s 2nd acoustic report notes that in respect of Deck – South the amplified music after 10pm should not exceed 91 dB(C)145 because of the impact of patron noise and yet the recommendation is 92 dB(C). There is no explanation as to why the recommendation ought not to be regarded as 91 dB(C). [159] In the first acoustic report Mr Moore recognises that noise could be 3 – 5 dB greater at a higher elevation than ground level.146 It is unfortunate that Mr Moore did not set out more clearly in his 2nd acoustic report whether an equivalent adjustment was undertaken when recommending noise levels to take account of the reflective nature of the Brisbane River and noise levels at higher elevations. It is also unfortunate that Mr Moore did not expressly state whether he applied a margin for error and variability of conditions. [160] In the circumstances, I find that the noise limits recommended should be adopted subject to a 6 dB adjustment to ensure that levels take into account noise levels at higher elevations, the impact of the reflective nature of the river and a margin for error. [161] There are other licensed premised in the locality with extended trading hours approvals with similar approved noise level conditions.147 Some limits are dependant upon external windows being closed and other noise limits vary depending upon whether windows and doors are open or closed. The acoustic reports, which support those levels are not before me. 145 Exhibit 1, p 366. 146 Exhibit 1, p 337. 147 Ibid, p 310, p 429 – p 435, p 441 – p 443, p 444 – p 447. -- 29 of 36 -- 30 [162] Set out below is a table of relevant licence details: Location Noise Limit dB(C) Condition/Area Fridays East 110 Doors open or closed Fridays Glamour Bar 105 Doors open or closed Fridays Main Deck 100 Outdoor Jade Buddha – upper level 99 Doors/windows open Jade Buddha – upper level 108 Doors/windows closed Pig N Whistle 95 Outdoor Pig N Whistle 110 Windows closed when entertainment/ music in progress in doors. Note Amplified entertainment in 63hz band not to exceed 104 dB(C) [163] There is evidence that noise emitted from these venues and Fridays in particular has given rise to complaints of sleep disturbance and impact on the lives of nearby residents. The Applicants contend that this is evidence that noise limits in a similar range will also cause disturbance and impact on amenity and their health. There is insufficient evidence before me as to the level of noise being emitted on the occasions of the complaints for me to necessarily draw the conclusion sought. It may be that noise in excess of the conditions were being emitted on such occasions. [164] These other venues are not as close to the residences at Admiralty Towers II so that noise would be further attenuated by distance and in the case of the Pig N Whistle noise would be attenuated by intervening buildings. Having regard to these limits, the condition imposed for Deck -North (97 dB(C)) and the internal areas when the doors are to be open (106 dB(C)) seem on the high side. [165] Mr Moore is one of a number of persons approved by OLGR to prepare noise impact assessments. There is evidence, which I accept, that Mr Moore is an experienced acoustic consultant and that the equipment used had been calibrated in accordance with the requirements of the Australian Standard in a National Association of Testing Authorities registered laboratory in November 2013. [166] In the absence of evidence from a similarly or better qualified acoustic consultant, I am not satisfied that I should disregard his report, because of the lack of quality assurance certification and the relatively short period, -- 30 of 36 -- 31 which had elapsed between calibration and when the measurements were taken in late February 2014. The evidence is that the calibration complied with Australian Standards. [167] In relation to the failure to follow Guideline 50 in all respects, I note, as stated earlier in these reasons, that it is a guideline. There is no legislative basis, which has been brought to my attention, which requires strict compliance with the guideline. During the hearing, Mr Quinn conceded this point and submitted that it is relevant to the exercise of the discretion. [168] I find that there was substantial but not strict compliance with Guideline 50. [169] In accordance with Guideline 50, Mr Moore did purport to have regard to both nearby residential and commercial premises, although he did not expressly have regard to the commercial premises to the immediate north, in close proximity to the opened glass panels to the restaurant area of the premises. I accept that attenuation of noise by distance would not be as great to these commercial premises and the nearby public spaces. [170] Mr Moore expressed a view that in order for commercial premises to be impacted by amplified music noise after 10pm they would need to be trading and that their own noise levels would result in any amplified music from Blackbird complying with the limits.148 On its face, the report does not draw these conclusions specifically in respect of the commercial premises to the immediate north. [171] In respect of the nearby commercial premises, there is some evidence that a director of Esquire, the closest commercial premises to the north, is of the opinion that his restaurant is not affected by noise from Blackbird and that his restaurant closes at midnight so is not affected by the extended trading hours.149 [172] Even if this evidence is disregarded, the evidence is that occupiers of nearby commercial premises did not lodge any objection when the application was advertised. In the circumstances, I am not satisfied that the report should be completely disregarded because the focus of the report was on the impact on nearby residences and other nearby commercial premises. [173] However, in order to minimise the impact of the grant of the 2nd ETH approval, given the close proximity of these premises and the lack of specific consideration of the impact of noise on them, I find that a condition ought to be imposed requiring the glass panels to the north of the restaurant be closed when amplified entertainment or music is in progress in the restaurant area after 1am. 148 Exhibit 1, p 360. 149 Ibid, p 829. -- 31 of 36 -- 32 [174] In the absence of other acoustic evidence, which quantify the impact, if any, I am not satisfied that the use of background levels taken at Kangaroo Point are necessarily invalid for other locations. [175] It is unfortunate that Mr Moore did not set out more fulsome reasons for his inability to record noise levels as close as possible to the nearest affected residential premises and for not carrying out the measurement in the way his preliminary report indicated was required for accurate measurement. [176] No doubt measurements may have been able to have been taken at a number of other possible locations with additional time and expense. Mr Moore is an experienced acoustic professional and there is no reason to believe that he did not exercise reasonable skill and judgement in taking the measurements and forming a view as to maximum levels so as to not cause ‘unreasonable noise’. [177] The 2nd acoustic report indicates that at monitoring locations the microphone was elevated 1.8 metres150 whereas Mr Moore’s first acoustic report indicated the microphone should be elevated 7 metres for measurements taken at Kangaroo Point. [178] Guideline 50 provides that the acoustic report is to make a recommendation as to the maximum noise levels to be placed as conditions on the liquor licence having regard to the definition of ‘unreasonable noise’ and ‘taking into consideration variables such as equipment, environmental fluctuations, patron noise and a margin for error’.151 [179] Mr Moore’s 2nd report notes that atmospheric conditions complied with the requirements of the Australian Standard, notes that when amplified music source noise levels were measured there was no other noise audible from the premises, takes into account the impact of patron noise but the report does not clearly take into account a margin for error. [180] Guideline 50 provides that background noise levels should exclude noise emanating from other entertainment venues so as not to inflate the background noise levels. The measurements were taken on a Monday evening/Tuesday morning when noise from other entertainment venues are likely to be less than during other trading times. [181] The Applicants contend that the background noise levels at Kangaroo Point are not representative of background noise at locations on the other side of the river such as Admiralty Towers II, because they contend the Kangaroo Point measurements would be more severely affected by noise from the Storey Bridge. This is an assertion. No evidence has been lead on this point. 150 Exhibit 1, p 348. 151 Ibid, p 598. -- 32 of 36 -- 33 [182] The use of one location to establish background levels for a number of locations is a factor in favour of ensuring that the noise limits are established having regard to a margin for error and variability in conditions. [183] There is some evidence that the speakers in the Exclusive Lounge Bar are not located in precisely the same location as that indicated in figure 2.152 The speakers in the photograph appear to be somewhat closer to the deck- north opening than figure 2 indicates. Relevantly the speakers face down toward the floor rather than directly out toward the deck. The difference in location of the speakers is a factor in favour of ensuring that the noise limits are established having regard to a margin for error and variability in conditions. [184] The Applicants submit that this is evidence that the acoustic consultant’s recommendation as to location of speakers have not been followed and that the report ought to be disregarded. The photograph clearly shows that the speakers are situated internally within the Exclusive Lounge Bar area. This location is not inconsistent with the recommendation as to the location of speakers in the first acoustic report, which recommendations relate to the fixing of speakers in external areas and which is referred to by OLGR in its Community Impact Assessment153. [185] There is other evidence that was documented as part of the reconsideration decision that the speakers, as installed, are not in the same locations as specified in the 2nd acoustic report.154 It is difficult to reconcile this evidence with the evidence contained in the photograph referred to above. An OLGR officer expressed a view that the difference in speaker locations could result in a difference in levels of up to 5dB(C)155. No justification for this opinion is set out and therefore I place little weight upon it. [186] Mr Quinn submits that Mr Moore ought to have considered ‘more general statutory considerations of amenity’, to which he had regard in another acoustic report156. The other acoustic report was not a report prepared for the purposes of the Liquor Act. In circumstances where the Liquor Act and the Liquor Regulations prescribe ‘unreasonable noise’ I am not satisfied that failing to expressly take into account other standards, of which Mr Moore was undoubtedly aware, results in the report being so unreliable that it must be disregarded particularly where no other acoustic report was presented quantifying the impacts. [187] The Applicants are critical of Mr Moore’s 2nd acoustic report because it does not consider more broadly the issue of amenity in a similar way to Mr Moore’s 2010 report. Mr Moore’s 2010 report, in making its noise limit recommendation, takes into account a number of publications including the World Health Organisation’s Guidelines for Community Noise, 1999. I accept that this report and the World Health Organisation’s Guidelines for 152 Exhibit 1, p 774 (photo); p 829. 153 Ibid, p 311. 154 Ibid, p 829. 155 Ibid, p 830. 156 Ibid, p714 – p 728, in particular at p 721 – p 722. -- 33 of 36 -- 34 Community Noise157 provide some evidence about noise measurement, noise limits, the adverse health effects of noise and in particular, the adverse effects of sleep disturbance. [188] It is accepted that the WHO guidelines do not have statutory force. It is appropriate to consider them but I place less weight upon them than provisions of the Liquor Act, the Liquor Regulation and the OLGR guidelines. [189] The Applicants have not sought to place before me evidence, which seeks to readily reconcile these other guidelines e.g. for ‘good sleep’158 as against the measurements taken and analysed in the 2nd acoustic report nor to reconcile the other guidelines to the definition of ‘unreasonable noise’. [190] It is not particularly surprising that the 2nd acoustic report did not traverse this ground and that it was focused on provisions under the Liquor Regulation. As at the time that the report was prepared and at the time of the original decision the definition of ‘unreasonable noise’ was confined to noise that exceeded the limits prescribed by regulation 40. The report focussed on making recommendations, which would seek to ensure that noise emitted did not exceed the limits prescribed. [191] The definition of ‘unreasonable noise’ in relation to licensed premises has been somewhat broadened and as at 30 January 2015 is defined to mean159 noise that – (a) exceeds the limits (if any) prescribed by regulation; or (b) contravenes a compliance order that applies to the premises; or (c) contravenes a condition that applies to the licence or permit for the premises [192] Regulation 40 of the Liquor Regulations 2002 prescribes what is ‘unreasonable noise’. It specifies levels for the period between 6am and 10pm and for the period between 10pm and 6am. The levels are prescribed by reference to levels exceeding background noise levels. The 2nd acoustic report160 seeks to demonstrate that recommended noise levels do not result in ‘unreasonable noise’. [193] The alternative definitions of ‘unreasonable noise’ means that compliance with conditions imposed in a licence may not ensure that unreasonable noise is not created, if in fact the noise exceeds the limits prescribed by regulation. [194] Mr Quinn submitted that having regard to questions of general amenity neither the Commissioner, nor the Tribunal in the Commissioner’s place, is compelled to set the noise conditions to the maximum sound limit beyond 157 Exhibit 1, p 729 – p 767. 158 Ibid, p 721. 159 Liquor Act, s 4. 160 Exhibit 1, p 341 – p 370. -- 34 of 36 -- 35 which ‘unreasonable noise’ would be created. Blackbird submitted that there was no basis upon which to make such an order, because I should accept the 2nd acoustic report. [195] I accept that noise pollution may contribute to health issues, so much is evident from the provisions of the Liquor Act. Part 5 Division 1A of the Liquor Act outlines matters, which may be considered in assessing the health and safety of members of the public and the amenity of a community or locality. These matters include ‘the nature and level of noise from the relevant premises’161. [196] It is not disputed that the measurement of noise is not a precise science and that levels may be impacted by a number of variables. I accept that intensive computer modelling is not prescribed by the Liquor Act or the OLGR Guidelines. [197] The sound monitoring sheets162 are some evidence of internal business processes commenced by Blackbird to ensure compliance with noise limits. They are some evidence of Blackbird’s intention to comply with the noise limits imposed from 10pm onwards, which is the relevant time period in respect of this application. [198] Mr Quinn also submitted that in setting noise limits regard should be had to standards required by the Workplace Health and Safety Act 2011(Qld). I am not satisfied that this is necessary. The licensee is responsible for complying with any legislative obligations it has in conducting its business. Under the approved Risk Assessed Management Plan163 Blackbird acknowledges its obligation to comply with workplace health and safety laws.164 Mr Quinn did not draw to my attention any successful defence of a prosecution under WHS legislation, which relied upon compliance with noise conditions under the Liquor Act. [199] The noise conditions effectively act as a guide to the maximum noise permitted under the Liquor Act but there is, of course, no requirement on a licensee to set amplification levels so that the noise conditions are just met if that would mean that they are in breach of other legislative requirements. As set out above, exceeding limits set by conditions is only one part of the definition of ‘unreasonable noise’. [200] The Commissioner may issue an order stopping or preventing unreasonable noise coming from the premises165. An abatement notice may be given if an investigator believes on reasonable grounds that noise coming from licensed premises is unreasonable noise166 requiring that the noise be reduced and kept at a level so that it is no longer an unreasonable 161 Liquor Act, s 128B(1)(c). 162 Exhibit 1, p 832 – p 839. 163 Ibid, p 40 – p 73. 164 Ibid, p 60 at [11]. 165 Liquor Act, s 46(1)(c). 166 Ibid, s187(1)(a). -- 35 of 36 -- 36 noise167. The Commissioner may, at any time, review the conduct of a licensee under an extended trading hours approval.168 [201] The Applicants contend that such enforcement provisions, whilst technically available do not replace the necessity to properly consider, whether the extended trading hours’ approval ought to be granted nor if granted what conditions are appropriate. They also highlight deficiencies in past enforcement, which were recognised in an Ombudsman’s report169 and in the OLGR’s response170. [202] Blackbird contends that the Applicants’ submissions in this regard presuppose that it will not comply with its licence and its obligations under the Liquor Act and that the evidence does not support a view that it is likely to be non-compliant. [203] I accept that the existence of these provisions does not detract from a necessity to consider the application and to determine appropriate conditions rather than to rely upon possible means of enforcement after the fact. 167 Liquor Act, s 187(2)(a). 168 Ibid, s 88. 169 Exhibit 1, p 852 – p 931. 170 Ibid, p 680 – p 681. -- 36 of 36 --