Bad Girls Maroochy Pty Ltd v Department of Tourism, Racing & Fair Trading & Ors [2003] QSC 171

SUPREME COURT OF QUEENSLAND CITATION: Bad Girls Maroochy Pty Ltd v Chief Executive of Department of Tourism, Racing & Fair Trading & Ors [2003] QSC 171 PARTIES: BAD GIRLS MAROOCHY PTY LTD ACN 097 130 419 (appellant) v CHIEF EXECUTIVE OF THE DEPARTMENT OF TOURISM, RACING & FAIR TRADING, INCLUDING LIQUOR LICENSING (first respondent) LIQUOR APPEALS TRIBUNAL (second respondent) MAROOCHY SHIRE COUNCIL (third respondent) FILE NO/S: SC No 10253 of 2002 DIVISION: Trial Division PROCEEDING: Civil Trial ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 11 June 2003 DELIVERED AT: Brisbane HEARING DATE: 30 April 2003 JUDGE: Mackenzie J ORDER: Leave granted to amend Notice of Appeal Appeal dismissed with costs to be assessed CATCHWORDS: LIQUOR LAW – LICENSING – APPLICATION FOR NEW LICENCE – HEARING OF APPLICATION – MATTERS FOR CONSIDERATION – REQUIREMENTS OF NEIGHBOURHOOD OR LOCALITY – where chief executive refused application for adult entertainment permit under Liquor Act 1992 (Qld) – where appeal to Liquor Appeals Tribunal – where tribunal dismissed appeal – where appeal to Supreme Court on questions of law – whether tribunal erred in construction of s 107A – whether ‘character’ equivalent to ‘amenity’ – whether public perceptions relevant to ‘character’ and/or amenity of a locality – whether character of locality substantially affected – whether amenity of locality lessened in some way – s119(4) – whether objector’s concerns reasonably based -- 1 of 7 -- 2 Liquor Act 1992 (Qld), s 21, s 25, s 34, s 103F-J, s 107A, s 119, s121 Broad v Brisbane City Council (1986) 2 Qd R 317, considered Douglas v Brisbane City Council (1993) 2 Qd R 16 Novak v Woodville City Corporation (1990) 70 LGRA 233 Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 COUNSEL: D R Gore QC for the appellant A J MacSporrran for the 1 st respondent G J Gibson QC for the 3 rd respondent SOLICITORS: Hynes Lawyers for the appellant Crown Law for the 1 st respondent Maroochydore Shire Council for the 3 rd respondent [1] MACKENZIE J: The appellant applied for an adult entertainment permit (AEP) under the Liquor Act 1992 (Qld) in respect of premises known as “Bad Girls” in Maroochydore. According to the reasons of the Liquor Appeals Tribunal (LAT) there is in force an On-premises (Cabaret) Licence at the premises. The Act allows the granting of an AEP to only existing licence or permit holders (s 103F to s 103J). [2] The Chief Executive of the Department refused the application in reliance on s 107A(1)(b), s 119(4)(a) and s 119(4)(b) of the Act. The appeal to the LAT was conducted by way of rehearing on the evidence before the Chief Executive, as provided for in s 34(1). The LAT was exercising jurisdiction under s 21(1) in doing so. It had the powers and discretions of the Chief Executive in respect of the matter under appeal and the duties imposed by the Act on the Chief Executive in respect of the matter under appeal (s 21(2)). It was subject to the limitations imposed by the Act on the Chief Executive in respect of the matter under appeal. [3] Section 25(1) limits the appeal against the Tribunal’s decision to the Supreme Court to grounds of error of law. The notice of appeal contains a large number of grounds of appeal which were distilled into six by senior counsel for the appellant. To the extent that leave was necessary to amend the notice of appeal that was not opposed and is granted. The grounds concerned with s 107A(1)(b) were the following: “(a) whether the LAT misconstrued the provision by regarding the absence of other premises as irrelevant (‘point 1’); (b) whether the LAT misconstrued the provision by regarding ‘character’ as equivalent to ‘amenity’, so as to make subjective public perceptions relevant, and by regarding town planning intentions as an element of character (‘point 2’); (c) whether the LAT erred in principle in concluding that it is the public’s perceptions which determine the character of a locality (‘point 3’); (d) whether it was not reasonably open for the LAT to be satisfied that the character of the locality would be substantially affected by the grant of the application (‘point 4’).” -- 2 of 7 -- 3 [4] Those concerned with s 119(4) are the following: “(a) whether the LAT erred in principle in concluding that the public’s perceptions may determine the amenity of a locality7 (sic) (‘point 5’); (b) whether it was not reasonably open for the LAT to decide that objectors’ concerns were reasonably based (‘point 6’).” [5] Amendments to the Liquor Act providing for granting an AEP were introduced by the Prostitution Act 1999 (Qld). The existing scheme of the Liquor Act with regard to objections to licences and permits under the Act was not substantially changed when the amendments introduced by the Prostitution Act were effected. An obligation of a similar kind to that existing was introduced with regard to advertising an application for an AEP. The right of objection to the application was provided for by the Liquor Amendment Act 2001 (Qld), by inserting s 119(4) which relates specifically to objections about applications for an AEP. Section 119(4) provides as follows: “(4) The grounds on which an objection about an application for an adult entertainment permit may be made are that, if the application were granted– (a) undue annoyance, disturbance or inconvenience to persons who reside, work or do business in the locality, or to persons in, or travelling to or from, an existing or proposed place of public worship, hospital or school or other facility or place regularly frequented by children for cultural or recreational activities is likely to happen; or (b) the amenity, quiet or good order of the locality concerned would be lessened in some way.” [6] Those grounds differ from those relating to other applications in that, for the other applications, the opening phrase is “undue offence, annoyance, disturbance or inconvenience”. The words italicised in the quotation from s 119(4) do not appear in s 119(3), the section relating to grounds of objection about an application other than one for an AEP. [7] There are two separate issues under s 119(4). The first is whether undue annoyance disturbance or inconvenience is likely to happen to persons:
who reside in the locality
who work in the locality
who do business in the locality
in or travelling to or from an existing or proposed o place of public worship o hospital o school o other facility or place regularly frequented by children for cultural or recreation activities. The second is whether the:
amenity
quiet
good order of the locality would be lessened in some way. -- 3 of 7 -- 4 [8] The first question to be answered involves consideration of the likelihood of undue annoyance, disturbance or inconvenience happening to persons in the listed categories if the application were granted. The second requires an inquiry as to the effect the granting of the permit would have on the amenity, quiet or good order of the locality. The word “lessened” in s 119(4)(b) is not modified by the word “substantially”. What is required is a finding that there will be a lessening of the qualities of the locality in “some way”. Presumably more than a trivial or minimal lessening would be required. However, it would be a question of fact in each case whether this requirement had been satisfied. [9] Also relevant in connection with the granting of an AEP is s 107A. One of the requirements is that the Chief Executive may grant such an application only if satisfied, relevantly, that: “(b) after considering that, if the application were granted, the combined total of licensed brothels and premises permitted to provide adult entertainment in the locality in which the relevant premises are situated would not substantially affect the character of the locality.” In considering these issues the Chief Executive must have regard to any comments of the relevant local government or Assistant Commissioner of Police received under section 117(2)(a). [10] This involves a judgment whether granting the AEP applied for would not substantially affect the character of the locality, when the total number of AEPs and licensed brothels in the locality is taken into account. An issue was raised whether the first premises of those kinds applied for could ever substantially alter the character of the locality. In my opinion the fact that there are no licensed brothels or premises permitted to provide adult entertainment in an area does not preclude the Chief Executive from being satisfied that the character of the locality in which the relevant premises are situated is such that granting even one AEP would substantially affect its character. However, since an AEP can only be granted in respect of premises where entertainment including table top dancing and striptease falling short of acts of an explicit sexual nature may be performed, cases where granting an AEP would substantially affect the character of the locality would seem to be rare. [11] In deciding whether to grant an application for an AEP, the Chief Executive is required to have regard to the objections made to the grant of the application, comments from the local government for the area, comments from the Assistant Commissioner of Police for the area and the impact on the amenity of the community concerned (s 121(5)). “Community” is a different word again from those used in s 107A and s 119(4). [12] The issues under s 107A and s 119(4) are separate and distinct. In general, it would seem not to matter whether s 107A was considered as a threshold question, as in a case where it was apparent that granting the application would substantially affect the character of the locality irrespective of other considerations, or as a question to be decided by the Chief Executive as a final question to be considered after he has decided that objections made pursuant to s 119(4) and other matters required to be taken into account have not persuaded him, to that point, not to grant the application. The approach may vary from case to case. -- 4 of 7 -- 5 [13] The purpose of s 107A(1)(b) seems to be to allow the Chief Executive to limit the number of licensed brothels and premises permitted to provide adult entertainment in a locality to a number which will not substantially affect the character of the locality. In theory, the Chief Executive could exercise that power, even though the matters raised by objectors under s 119 or other relevant considerations had not been made out. Section 119(4)(a) seems to be concerned with the effect on people. Section 119(4)(b) is concerned with the effect on the locality. In that respect it has more affinity with s 107A but the use of different terms in them suggests that they may not cover precisely the same ground. [14] The character of a locality is not fixed for all time. It is something that may change for better or worse over time. At any relevant point in time, as the LAT discussed in its reasons, the nature and appearance of physical features of the locality and the nature of activities carried on by people in it are components of the character of the locality. In my view, any sufficiently defined and discernable evidence of evolution of the locality which is under way at the relevant point in time is also a factor contributing to its character. An ongoing process of regeneration or degeneration of the locality is capable of contributing to its character for the purposes of the legislation. Such a process may be evidenced by town planning regimes or intentions of sufficient certainty. This is essentially what the LAT observed in its reasons. [15] However, a more contentious issue is the focus in the LAT’s reasons upon the notion that the character of the locality is not confined to its physical appearance but includes subjective perceptions of the locality by persons who have some connection with the locality. The reasons appear to treat the notions of “amenity” and “character” as very similar in content. The authorities establish that when the amenity of a locality is under consideration it is inevitable that the process of determination will involve considering individual perceptions of the existing amenity and what effect the relevant proposal will have upon it (Broad v Brisbane City Council (1986) 2 Qd R 317). It has been described as a “wide and flexible” concept (ibid 326). [16] With regard to “amenity”, Thomas J said in Broad at 319-320: “The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce.” [17] This statement was referred to with approval by Jacobs J, with whom Cox and Prior JJ agreed in Novak v Woodville City Corporation (1990) 70 LGRA 233, 236. In Perry Properties Pty Ltd v Ashfield Council (No 2) (2001) 113 LGERA 301, Bignold J was concerned with a more detailed statutory provision but accepted that the concept of “amenity” was very wide, referring to both Broad and Novak. -- 5 of 7 -- 6 [18] In my view the notion of character of a locality, in legislation where that word is used as a distinct concept from “amenity”, is a more abstract concept. The example appended to the section in my view is consistent with this. It is not helpful to employ notions of objectiveness and subjectiveness in determining a locality’s character. Whether the aggregate number of the two kinds of permits will substantially affect the character of the locality involves a value judgment. [19] In making that value judgment it is inevitable that a view must be formed of the essential characteristics of the neighbourhood having regard to the matters to which reference has already been made. The boundary to be drawn between nature of activities carried on by people in the locality and an additional component of perceptions of individuals is an imprecise one. However, in my view the notion of character of a locality is, without attempting to perform the impossible task of comprehensive definition, a more limited concept than amenity. Douglas v Brisbane City Council (1993) 2 Qd R 16 is concerned with a particular statutory provision, in which the phrase “character of building” appears in a context concerned with physical restrictions. It is not of particular assistance in the present case except to say that I do not consider the notion of “character” in s 107A to be as restricted as in that context. To the extent that the LAT appears to have, for practical purposes, equated the two notions, I consider that the Tribunal fell into error. [20] However, the question remains whether that error had any effect upon the outcome. The LAT recognised that there are separate issues to be addressed under s 107A and s 119(4). It separately discussed the question of amenity, in respect of s 119(4). As to the first limb of matters to be considered under s 119(4) the LAT found that the granting of the application would be unlikely to cause undue annoyance, disturbance or inconvenience to persons who reside, work or do business in the locality, or travel to facilities in the locality. However, with regard to the second limb, it found, for the same reasons that it found that the character of the locality would be substantially affected, that the amenity of the locality would change in a materially adverse way if the applications were to be granted. In this regard the LAT has acted in accordance with established principle. [21] It was argued that since the focus of the LAT’s decision was upon the issue of substantial effect upon the character of the locality, its consideration of the issue of amenity should be discounted. The Tribunal embarked upon a comprehensive analysis of the notion of “amenity” in relation to the facts of the case when considering whether the same factors applied with respect to “character”. There is no evident reason to think that the proper principles were not applied to the facts before it in deciding that the amenity of the locality concerned would be lessened in some way. [22] One particular argument in this regard needs to be addressed. It was submitted that, on the basis of the conclusion reached in Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 that, having made findings that certain specific grounds of objection did not support a conclusion that undue annoyance, disturbance or inconvenience to persons who reside, work or do business in the locality or travel to facilities in it, it was not open to the LAT to find that the amenity of the area would be lessened in some way. The answer is that issues raised in objectors’ concerns may be components of, but are not the sole determinants of the amenity of a locality. The amenity of a locality involves more -- 6 of 7 -- 7 than that, as Broad demonstrates. Further, it involves too narrow a reading of the LAT’s decision to say that it necessarily was obliged to reject that there was a lessening of the amenity of the locality once it had rejected the three specific concerns raised in the standard format objections. What the LAT concluded, especially in paragraph 30 of its reasons, illustrates that the focus was wider that the appellant’s submissions concede. [23] With regard to the grounds of appeal, they should be answered as follows: 1. Grounds relating to s 107A(1)(b) (a) As a matter of construction, it is open to the Chief Executive, if the facts support such a conclusion, to decide that the character of the locality would be substantially affected by the granting of one AEP, even though, at the time, there are no licensed brothels or AEP’s already in the locality; (b) The LAT misconstrued the provision by regarding “character” as equivalent to “amenity”. Town planning intentions of sufficient certainty, along with other sufficiently defined and discernible indicia of evolution of the locality are not irrelevant; (c) See discussion in paragraphs [14] – [19]; (d) Unnecessary to answer because of conclusion in paragraph [24]. 2. Grounds relating to s 119(4) (a) For the reasons given, the LAT properly considered the principles relating to “amenity”; (b) It was open to the LAT to decide that objectors’ concerns were reasonably based. [24] Notwithstanding the error in finding as close a correspondence between “character” and “amenity” of the locality as the LAT found, such error did not and could not affect the outcome of the appeal before it since it properly applied the principles concerning “amenity” in deciding that the amenity of the locality would be lessened in some way. The questions of substantial effect on the character of the locality and lessening of amenity of the locality are separate and distinct. An adverse decision as to “amenity” is a proper ground for refusing an application. [25] The appeal is dismissed with costs to be assessed. -- 7 of 7 --