Butler & Ors v Commissioner for Liquor and Gaming (No 2) [2013] QCAT 428

CITATION: Butler & Ors v Commissioner for Liquor and Gaming (No 2) [2013] QCAT 428 PARTIES: Ms Jill Butler Ms Elodie Scally Mr Murray Webb Ms Claire Jones Mr Peter Scally Mrs Catherine Scally Mr Carmelo Ginardi Ms Angela Barone Mr Bruce Thomas Ms Erica Glendenning Ms Gillian Carter (Applicants) V Commissioner for Liquor and Gaming GBBC Pty Ltd (Respondents) APPLICATION NUMBER: GAR236-12 MATTER TYPE: General administrative review matters HEARING DATE: 20 May 2013 HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 7 August 2013 DELIVERED AT: Brisbane ORDERS MADE: The decision of the Respondent, Commissioner for Liquor and Gaming, is confirmed. CATCHWORDS: Liquor licensing – Commercial other Producer/Wholesale license – where premises from which the licence would operate in a mixed use development area – where compliance with the requirements with the Liquor Act 1992 (Qld) – whether adverse effect on the amenity of the area – whether conditions imposed sufficient to address the applicant’s concerns. Liquor Act 1992 (Qld) ss 3, 75, 105, 116, 117, -- 1 of 7 -- 2 118 and 121. Queensland Civil and Administrative Tribunal Act 2009 ss 20 and 24 Kehl v Board of Engineers (2010) QCATA 58; Staddon and Others v Commissioner, Department of Employment, Economic Development and Innovation and Anor [2011] QCAT 258 APPEARANCES and REPRESENTATION (if any): Applicant: Self Represented and by Mr Geraghty as agent. First Respondent: Mr D. Robinson, solicitor of the Office of Liquor and Gaming. Second Respondent: Mr Jones solicitor of Liquor and Gaming Specialists. REASONS FOR DECISION [1] On 10 November 2011 GBBC Pty Ltd, trading as Green Beacon Brewery Co lodged an application with the Office of Liquor and Gaming Regulation for a Commercial other Producer/Wholesale license to enable it to operate, as a retail boutique craft beer producer and wholesaler at 26 Helen Street in Teneriffe. The premises from which the business is to be conducted is a renovated warehouse at street level. The entrance to the premises is through a large roller door at the front of the building which will remain open during trading hours. [2] The application was advertised and a number of local residents lodged objections to the granting of the licence. Those objectors are the applicants in this proceeding. [3] The application was processed in compliance with the requirements of the Liquor Act 1992 (Qld), the objectors concerns were taken into account and the licence was provisionally approved, with conditions, by the Commissioner on 30 May 2012. [4] On 26 September 2012, Mrs Butler one of the applicants filed an application to review the decision of the Commissioner. Subsequently the other objectors were joined to the proceeding as applicants. [5] Section 30 of the Liquor Act permits a review of the Commissioner’s decision to any person who made an objection in the application for the licence. Section 33 provides that the Tribunal must hear and decide the review by way of a reconsideration of the evidence before the Commissioner when the decision was made applying the same law that applied when the decision was made. The Tribunal’s function in reconsidering the evidence before the Commissioner is to produce the -- 2 of 7 -- 3 correct and preferable decision.1 It is not the Tribunal’s function to examine the “process by which it was arrived at, nor the reasons given for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made. There is no presumption the original decision is correct”. 2 [6] The application for review addresses such matters as inconsistency between conditions imposed on other licensed premises in the area and the subject licence; failing to address the maintenance of the existing neighbourhood amenity; not taking into account opposition to the granting of the license by a local councillor and Member of the legislative assembly, the use of the premises was contrary to the relevant local government town planning scheme; non conformance to the Centre Amenity and Performance Code and the fact that the Commissioner relied on the assertion by Green Beacon that the proposed development was self assessable. Other grounds include lack of transparency, noise, behaviour of patrons to the new premises parking and failure to request a full community impact statement. The Legislation [7] The purpose of the Liquor Act is to minimise the adverse affects of alcohol on the health and safety of members of the public. It is also to regulate the optimum development of the tourist, liquor and hospitality industries within the state having regard to the welfare, needs and interests of the community and economic implications of change. The processes for granting a liquor license, and the purpose of the Act in this regard, is to provide for flexible, practical systems of regulation of the liquor industry in the State with minimal formality, technicality or intervention consistent with the proper and efficient administration of the Act.3 Section 75 of the Act deals with the sale of liquor under a producer/wholesaler license. [8] In Staddon and Others v Commissioner, Department of Employment, Economic Development and Innovation and Anor4 the Tribunal said: The main purpose of the Act is to regulate the liquor industry, and areas in the vicinity of licensed premises, in a way that is compatible with minimising harm and the potential for harm, from alcohol abuse and misuse and associated violence and minimising adverse affects on the health and safety of members of the public and minimising adverse affects on the amenity of the community. The decision-making process of both Commissioner and the Tribunal starts from the proposition that a community of this size is entitled to access a premises having a general license which is within the locality. The presumption is in favour of, rather than against, a license unless the community impacts cannot be minimised. The Act does not contemplate that a grant of a license will have no adverse impact on amenity as suggested by Ms Abby Staddon; it is a question of balance, with the amenity impacts to be minimised. 1 QCAT Act s 20. 2 Kehl v Board of Engineers (2010) QCATA 58 at [9]. 3 Liquor Act 1992 s 3. 4 [2011] QCAT 258. -- 3 of 7 -- 4 [9] I respectfully adopt that statement here. The Locality and the Premises [10] Helen Street is in an area of Teneriffe known as the Commercial Road Precinct of Newstead and Teneriffe Waterfront Neighbourhood Plan. It runs between Commercial Road and Skyring Terrace. Skyring Terrance then runs into Vernon Terrace. It is zoned WP2 which has a mixture of manufacturing, warehousing, commercial and residential uses. There are apartment buildings in Helen Street including one opposite the subject premises. There are also a variety of businesses operating in Helen Street, on Commercial Road and in the area generally consistent with the zoning. There are numerous restaurants and bars that also operate in the Teneriffe area. The commercial businesses in Helen St close between 5:00m and 6:00pm and generally, apart from general traffic noise, there is little activity in the street after this time. [11] The business to be conducted is a boutique brewery with a restaurant on site. The license permits the sale of liquor brewed or manufactured on site and other beverages only with the sale of food. The building is a large open warehouse without internal walls. The front of the building consists of a large roller door which will remain open during hours of operation. The internal fit out not only has table and chairs for dining but also a bar where the brewed beer is served. Its hours of operation are between 10:00am and 12:00am Monday to Friday. Assessment of the application [12] In assessing the application the OLGR complied with all of its statutory obligations under the Act which included, inter alia: compliance with the minimum requirements for the purposes of advertising;5 obtaining advice about the application from the Queensland Police Service and the Brisbane City Council to ensure that there was compliance with the town planning scheme;6 advice from the Queensland Police Service; ensuring the application was duly advertised as required by s 118; undertaking compliance investigations with the provision of a report to the OLGR which addressed the location of the premises, the available parking, the availability of public transport and the location of residential properties near the subject premises; undertaking a community impact assessment7 which considered the material provided by the objectors, the input from regulatory bodies; consideration of objections received in response to the advertisement which included 30 signatures, and 3 petitions with a total of 45 signatures. All of these objections have been produced to the Tribunal in the statement of reasons. [13] The Commissioner had regard to the community impact,8 existing and projected population and demographic trends for the area;9 reasonable 5 Liquor Act 1992 s 105. 6 Liquor Act 1992 s 117. 7 Liquor Act 1992 ss 116 and 121. 8 Liquor Act 1992 s 121(a)(i). -- 4 of 7 -- 5 expectations of the locality;10 likely health and social impacts on the local population;11 magnitude, duration and probability of health and social impacts;12 the presence of sensitive sights or facilities or communities which may be directly accessed.13 [14] The provisional approval granted was subject to a number of conditions which included amongst other things: liquor may be sold on the premises provided that premises adheres to the principal activity of production and wholesaling of liquor made on the premises; noise not to exceed 75dB(c) fast response, measured 3 metres from the source; the completed premises must comply with the plans submitted to the Commissioner; and, there must be a final inspection by an officer of the respondent. There are also requirements for obtaining a food business license under the Food Act and certification of plans and Notification of the Compliance from the Queensland Fire and Rescue Service signage and taxi services to be made available. The applicants’ position [15] The applicants accept that the Commissioner complied with the requirements of the Liquor Act in processing the application but contend that such matters as the noise and disturbance that would be caused from the operation of the premises; the behaviour of patrons from excess alcohol consumption; lack of parking facilities for patrons in the street and surrounding area; the adverse impact on the amenity of Helen Street after 6:00pm were not properly take into account or given sufficient weight. All of these matters are addressed in the submissions filed by the applicants at the commencement of the hearing. [16] There will, inevitably, be some increase in noise as a result of the operation of Green Beacon. The noise will not only emanate from the patrons in the brewery but there will be associated noise from patrons walking to and from the brewery, car doors closing, increase traffic movements and perhaps entertainment. Each of the applicant’s in their objections to the application expressed concerns about the real potential for increased noise levels. Safety issues have been raised generally. [17] A Community Impact Assessment was undertaken to assess the impact of the granting of a licence to Green Beacon.14 The Assessment document, under the heading “Amenity”, sets out in detail all of the concerns expressed in the various objections, which include those referred to above. [18] Consideration of the objections must be balanced against the particular zoning of the precinct and how the area has developed in recent years. 9 Liquor Act 1992 s 116(8)(a). 10 Liquor Act 1992 s 116(8)(b). 11 Liquor Act 1992 s 116(8)(c). 12 Liquor Act 1992 s 116(8)(d). 13 Liquor Act 1992 s 116(8)(e). 14 Statement of Reasons Addendum “A”. -- 5 of 7 -- 6 The zoning recognises Helen St as a mixed use area promoting the consolidation of commercial and retail activities. There has been residential development and it is ongoing. There is an apartment block directly across from the subject property and new ones are planned in the street. The result is that there is a mixture of uses in the vicinity of the subject business, all permitted under the planning scheme. [19] It is acknowledged that this mixed use in the Teneriffe area has caused problems with the development of cafes and restaurants in close proximity to residential accommodation. However the main problems here are associated with outside dining on footpaths and when located on the ground floor of apartment buildings. Parking is also an issue because of high density living which is then exacerbated by further commercial development of the type contemplated by this application but this is no different to any other areas of Teneriffe. [20] The business model here does not involve any outdoor activity or use of the footpath for trade and therefore the noise of patrons gathering at Green Beacon will be confined to the inside of the building. It seems obvious to me that the design of the building is such that there may be an echo effect of the noise generated on busy nights, but the condition imposed that noise be kept to a maximum of 75dB(c) should ameliorate any adverse effect of this on the local community. [21] I have been referred to a number of licenses issued for licensed premises in the Teneriffe/New Farm area. These premises are mainly restaurants, some with outdoor dining. Generally conditions are imposed to ensure the noise does not exceed 75dB(c). This is particularly so where this is outdoor dining. The examples listed below15 demonstrate that there is consistency in the imposition of a suitable noise condition when there is proximity to residential accommodation as exists along the heavily populated Vernon Terrace and adjacent streets. Conclusion [22] If the licensee complies with the various conditions imposed on the licence it seems to me that the impact on the amenity of the local community would be kept to a minimum. If the conditions are not complied with, the applicants can complain to the Commissioner and if breaches of the conditions continue the continuation of the licence will be at risk. This is the appropriate remedy for the applicants. [23] This, when balanced against the responsibility of the Commissioner to ensure the Liquor Act is administered in a way that satisfies its objects to minimise the adverse affects on the amenity of the community, and also promote the development of liquor and hospitality industries in the State, 15 Lic. No. 92944 – Eves on the River; Lic. No. 123609 – London Club Restaurant; Lic. No. 85940 – Aqua Lina; Lic No. 155570 Rehab; Lic No. 123108 – Passione Gelateria & Desert Bar; Lic No. 126596 – Brio Espresso & Juice and Lic. No. 136790 – Salon Bar Dining. -- 6 of 7 -- 7 leads me to a conclusion that the decision of the Commissioner should be confirmed.16 16 QCAT Act s 24. -- 7 of 7 --