Body Corporate for Harbour City of the Strand CTS 1856 v Chief Executive Office of Liquor and Gaming Regulation and Anor [2012] QCAT 297

CITATION: Body Corporate for Harbour City of the Strand CTS 1856 v Chief Executive Office of Liquor and Gaming Regulation and Anor [2012] QCAT 297 PARTIES: Body Corporate for Harbour City of the Strand CTS 1856 (Applicant) v Chief Executive Office of Liquor and Gaming Regulation (First Respondent) Strand Properties Townsville Pty Ltd (Second Respondent) APPLICATION NUMBER: GAR156-11 MATTER TYPE: General administrative review matters HEARING DATE: 15 June 2012 HEARD AT: Townsville DECISION OF: Sandra G Deane, Member DELIVERED ON: 12 July 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Chief Executive dated 15 April 2011 is confirmed. 2. The application for review is dismissed. CATCHWORDS: APPLICATION FOR EXTENDED TRADING HOURS – impact on amenity – where adverse impacts minimised – application dismissed Liquor Act 1992, ss 3(a), 21, 33, 34, 107C, 111(g), 119(3), 121 Queensland Civil and Administrative Tribunal Act 2009, ss 19, 20, 24, 28 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Staddon and Ors v Chief Executive Department of Employment, Economic -- 1 of 7 -- 2 Development and Innovation and Anor [2011] QCAT 258 APPEARANCES and REPRESENTATION (if any): APPLICANT: Body Corporate for Harbour City of the Strand CTS 1856 represented by Mr G Adler FIRST RESPONDENT: Chief Executive, Office of Liquor and Gaming Regulation represented by Ms J Droguet, in house Lawyer SECOND RESPONDENT: Strand Properties Townsville Pty Ltd, represented by Mr P Gleeson, Director REASONS FOR DECISION Background [1] On 15 April 2011 the Chief Executive granted to Strand Properties, the licensee of the Criterion Hotel (the Hotel), located at the corner of the Strand and King Street, Townsville, an application for extended trading hours. [2] Conditions were imposed which the Chief Executive contends are designed to lessen the impact on amenity, ensure compliance with the Liquor Act 1992 (the Act) and reduce alcohol related harm and related disturbance1. [3] The Chief Executive also varied the licence in a way in which he contends will ensure compliance with the Act and minimise alcohol related harm and related disturbance.2 [4] Strand Properties originally applied for extended trading hours for each day of the week. Subsequently the application was amended. The amended application for extended trading hours on Friday and Saturday nights and on nights before a public holiday was granted. [5] The Body Corporate lodged an objection to the application and has applied for a review of the decision. [6] Harbour City on the Strand is a residential building across the street from the Hotel. The proximity of the premises can be seen in the photographs produced.3 [7] This Tribunal has power to review decisions by the Chief Executive to grant or refuse an application of an extended hours permit.4 1 Section 107C Liquor Act 1992. 2 Section 111(g) Liquor Act 1992. 3 P169 documents filed 10 August 2011. -- 2 of 7 -- 3 [8] The review proceeding is to be conducted by way of a fresh hearing on the merits with the object of producing the “correct and preferable decision”. In conducting the review, the Tribunal has the functions of the original decision maker and there is no presumption that the original decision is correct.5 [9] The Tribunal may confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return the matter to the decision maker for reconsideration.6 [10] The Tribunal is required to hear the matter on the basis of the evidence before the decision maker unless leave is given for new evidence to be presented.7 [11] The evidence before the decision maker was filed in the Tribunal on 10 August 2011. [12] The Tribunal may grant leave for new evidence if satisfied that the party did not know and could not reasonably be expected to know of the existence of the evidence before the decision and it would be unfair not to allow the party to present the evidence. If leave is granted the Tribunal is to adjourn the proceedings to allow the Chief Executive to reconsider the decision and allow for further submissions by affected persons.8 [13] The Chief Executive filed 6 documents which were not before the decision maker at the time the decision was made.9 These documents comprised noise complaints occurring on 15 August 2011 and 11 January 2012 and an Office of Liquor and Gaming Officer’s file note dated 12 October 2011. [14] Mr Adler on behalf of the Body Corporate objected to leave being given on the basis of the Body Corporate’s written submissions.10 Those submissions simply point to section 33 of the Act and provide no submissions on why leave ought not be granted as provided for by section 34 of the Act. [15] In giving leave for these documents to be presented, I was satisfied that the documents did not exist before the decision was made and were relevant to the issue of amenity of the locality and the Body Corporate’s contention that the decision will cause disruption. [16] The parties have had this information since 3 April 2012 and have had the opportunity to make submissions in relation to it. The Chief Executive 4 Section 21 Liquor Act 1992. 5 QCAT Act, ss 19, 20; Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [9]. 6 Section 24 QCAT Act 2009. 7 Section 33 Liquor Act 1992. 8 Section 34 Liquor Act 1992. 9 Submissions filed 3 April 2012. 10 Submissions filed 31 May 2012. -- 3 of 7 -- 4 contends that the new evidence supports the decision made and submits that an adjournment is not necessary. [17] Strand Properties filed a number of documents some of which were not before the decision maker at the time the decision was made.11 [18] The Chief Executive did not oppose leave being given to any of the documents requiring leave. [19] As before Mr Adler on behalf of the Body Corporate objected to leave being given on the basis of the Body Corporate’s written submissions. Those submissions rely upon section 33 of the Act and provide no submissions on why leave ought not be granted as provided for by section 34 of the Act other than a submission that “New evidence by way of Reports or by way of hearsay statements should not form part of the Submissions.” [20] The Tribunal is not bound by the rules of evidence12 although I accept that such matters may affect the weight the Tribunal is prepared to give to such evidence. [21] Attachment A is a copy of the document to be found at page 193-195 of the material filed 10 August 2011 and was clearly a document before the decision maker and does not require leave. [22] Strand Properties submitted that Attachment B was part of the response to the Body Corporate’s objection and ought to have been before the decision maker. None of the parties could direct me to where a copy of this document was contained in the material filed 10 August 2011. On the basis that Attachment B does not satisfy the first limb of the test in section 34 of the Liquor Act 1992 I declined to grant leave. [23] Attachment C is a noise report dated 7 September 2011 in purported compliance with a condition imposed as part of the decision under review. The document satisfies the first limb of the test in section 34 of the Act. I declined to grant leave on the basis that I was not satisfied that it would be ‘unfair not to allow’ Strand Properties to present it. [24] Attachment D is copies of the resumes of 2 senior staff employed by Strand Properties. In giving leave for these documents to be presented, I was satisfied that the documents more likely than not did not exist before the decision was made and were potentially relevant to the Body Corporate’s contentions. [25] Attachment E is an email from a security provider dated May 2012. In giving leave for this document to be presented, I was satisfied that the document did not exist before the decision was made and was relevant to the issue of amenity of the locality and the Body Corporate’s contention that the decision will cause disruption. 11 Submissions filed 15 May 2012. 12 Section 28 QCAT Act. -- 4 of 7 -- 5 [26] Attachment F is copies of various documents produced by the Office of Liquor and Gaming Regulation of a similar nature to those presented by the Chief Executive as new evidence. In giving leave for these documents to be presented, I was satisfied that the documents did not exist before the decision was made and were relevant to the issue of amenity of the locality and the Body Corporate’s contention that the decision will cause disruption. [27] The parties have had these documents since 15 May 2012 and have had the opportunity to make submissions in relation to them. The Chief Executive contends that the new evidence supports the decision made and submits that an adjournment is not necessary. Discussion [28] It is not disputed that: a) a hotel has operated from the Hotel’s location for a significant period of time; b) a hotel was in operation at the time the Harbour City on the Strand building was constructed; c) the Hotel is located within the Flinders Street East Precinct which is exempt from the extended trading hours moratorium; d) the Hotel is within the Drink Safe Precinct; e) there are a number of other premises within the Flinders Street East Precinct which operate until 5am; f) a previous licensee of the Hotel had action taken against it for failure to comply with the Act; g) prior to the decision the Hotel had authority to trade from 10am to 3am; h) the decision extends trading hours by 2 hours between 3am and 5am on Friday and Saturday nights and on nights prior to public holidays. [29] The Chief Executive and this Tribunal (standing in the decision maker’s place) is required to have regard to the public interest in so far as it relates to the main purpose of the Act and the impact on the amenity of the community, the objections made, the comments of the local government, comments from the assistant commissioner for the locality, impact on the amenity of the community and the previous conduct of the licensee in discharging its duties under the Act, the licensee’s ability to control noise and behaviour of persons on or in the vicinity of the premises and the suitability of the premises.13 [30] Significant in this is the community impacts of granting an application. 13 Section 121 Liquor Act 1992. -- 5 of 7 -- 6 [31] The purpose of the Act14 and role of amenity and community impact has been considered previously by the Tribunal in Staddon15. I accept that the guiding principle is minimising amenity impacts. [32] The Body Corporate’s grounds for objection are based mainly on annoyance, disturbance and effect on amenity.16 [33] The Body Corporate acknowledges that Strand Properties may be able to exercise some control over their patrons and noise within the Hotel but it will not be able to control people leaving the Hotel and that disturbances are likely to occur. [34] The Body Corporate point to problems which occurred when a previous licensee was granted an extended hours permit to 5am. The conduct of the current licensee is a factor which is required to be considered.17 The conduct of the previous licensee is not such a factor. I do not accept that the current licensee should necessarily be prejudiced by a previous licensee’s conduct. [35] The decision was made subject to certain conditions including the provision of an acoustic report and may be the subject of further conditions. [36] Since the decision was made the Chief Executive has received 2 complaints, neither of which relates to the Hotel’s operations in the extended trading hours. [37] I have considered the objections and the Body Corporate’s submissions carefully. The Act does not contemplate that for an application to be granted that there must be no impact. [38] The decision was made subject to conditions designed to lessen the impact and variations to the license were also made to ensure compliance with the Act and to minimise alcohol related harm and disturbance. [39] Taking into consideration the matters set out in section 121 of the Act, all of the evidence before the decision maker and for which leave was granted and the submissions I am satisfied that the amenity, quiet and good order of the locality would not be unduly affected and that there would not be undue annoyance, disturbance or inconvenience to persons who reside, work or do business in the locality by the grant of the application for extended hours when coupled with the conditions imposed and the variations to the licence made. [40] I find that the decision should be confirmed and the application dismissed. 14 Section 3(a) Liquor Act 1992. 15 Staddon and Ors v Chief Executive Department of Employment, Economic Development and Innovation and Anor [2011] QCAT 258. 16 Section 119(3) Liquor Act 1992. 17 Section 121(1)(g) Liquor Act 1992. -- 6 of 7 -- 7 Orders [1] The decision of the Chief Executive dated 15 April 2011 is confirmed. [2] The application for review is dismissed. -- 7 of 7 --