Bell v Vahlano Hotels
[2014] VMC 28
•26 NOVEMBER 2014
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MILDURA
CRIMINAL DIVISION
Case No. E11037865
| SERGEANT P BELL | Informant |
| v | |
| VAHLANO HOTELS PTY LTD Trading As THE SANDBAR WINEBAR | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | MILDURA |
DATE OF HEARING: | 20 NOVEMBER 2014 |
DATE OF DECISION: | 26 NOVEMBER 2014 |
CASE MAY BE CITED AS: | BELL v VAHLANO HOTELS |
REASONS FOR DECISION
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Catchwords: s 108 (1)(a)(i) Liquor Control Reform Act 1998 – supply of liquor other than in accordance with Late Night (general) Licence No. 31920643: on 7 December 2013 the defendant supplied liquor “whilst the noise being emitted from the premises caused undue detriment to the amenity of the area” – meaning of “undue detriment” & “amenity of the area” – s 3A, 3AA – transient disturbance – charge not proven.
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APPEARANCES: | Counsel | Solicitors |
| For the Informant | Senior Constable Courtney | VPOL |
| For the Defendant | Mr Larkins |
HIS HONOUR:
1 On Saturday 7 December 2013, Mr Smith was disturbed by noise emanating from The Sandbar Winebar on Langtree Avenue, Mildura at approximately 11 p.m.. His partner, Ms Tipping was woken by the noise. Mr Smith rang the local police station and shortly thereafter, Sgt Bell attended their premises, a distance in excess of 400 metres from the Sandbar, to investigate the complaint.
2 Sgt Bell gave evidence that he also heard the noise which he described as “bass notes and words” and proceeded to follow the noise to its location which was from a live band performing in the beer garden at the rear of the premises operated by the defendant company. He told the court that he spoke to Mr Palms, the Manager of the venue, and told him the noise was too loud and proceeded to issue him with an Infringement Notice under the Liquor Control Reform Act 1998.
3 The Late night (general) Licence granted to the Licensee, Vahlano Hotels Pty Ltd trading as The Sandbar Winebar, authorised the licensee to supply liquor on the licensed premises for consumption on or off the licensed premises during specified trading hours. Relevantly, it provided:
The licensee shall not cause or permit undue detriment to the amenity of the area to arise out of or in connection with the use of the premises to which the licence relates during or immediately after the trading hours authorised under this licence.
It is this condition of the Licence that is alleged to have been breached by the defendant’s conduct on 7 December 2013 and forming the basis of the offence pursuant to s 108 (1)(a) of the Liquor Control Reform Act 1998.
4 The Licence also provides:
The licensee shall ensure that the level of noise emitted from the licensed premises shall not exceed the permissible noise levels for entertainment noise as specified in the State Environment Protection Policy (Control of Music Noise from Public Premises) No.N-2.
It is not alleged in this proceeding that this licence condition has been breached.
5 Mr Smith gave evidence that he lives in a brick veneer house on Pine Avenue Mildura, a distance of approximately 400 metres from the Sandbar. He said that he has lived in the house for 20 years or more. He said that at approximately 10.30 p.m he went from his lounge room to bedroom when he heard the noise of a band. He told the court that his house is fully insulated and also has block out curtains and all windows were closed at the time. He said that he laid down for a period hoping the noise would subside but when it didn’t after “10 minutes or so” he decided to ring the police.
6 Ms Tipping, the partner of Mr Smith, gave evidence that she went to bed at approximately 10 p.m. and was woken by loud music at approximately 11 p.m. She described the sound as “bass noise” and that she found it difficult to get back to sleep.
7 Sergeant Bell gave evidence that he attended Mr Smith’s house and heard noise coming from the central business district. He described it as “bass notes and words”. He told the court that he followed the sound from the house to the Sandbar where he spoke to the Manager, Malcolm Palms and told him that the noise from the beer garden was too loud. Sgt Bell said that Mr Palms responded by telling him the decibel reading was 65db. In cross examination, he said that he was unable to state which and how many other venues had live or amplified music that night and was unable to verify the decibel reading alleged by Mr Palms as he did not have the equipment necessary to measure it.
8 It is not in dispute that live music was being played at the venue on the night in question nor that it was audible to Mr Smith and Ms Tipping and created a disturbance to them for a period of 10 minutes or so. It is also not in dispute that the licensed premises are situated within a designated Commercial Zone (B1Z) as is the residence of Mr Smith and Ms Tipping. One of the purposes of the Commercial Zone is said to be: “To create vibrant mixed use commercial centres for retail, office, business, entertainment and community uses”.
9 The issue to be determined is whether on the stated facts, the prosecution has proven that the defendant caused or permitted “undue detriment to the amenity of the area”.
10 Relevantly, s 3A of the Liquor Control Reform Act defines “amenity of an area” to be the quality that the area has of being pleasant and agreeable. Factors that may be taken into account in determining whether a licence or its conditions would detract from or be detrimental to the “amenity of an area” include, but are not limited to “noise levels” - s 3A (2)(c). S 3AA sets out factors, which if sufficiently proximate to licensed premises, are taken to constitute evidence of detraction from, or detriment to, the amenity of the area in which the licensed premises are situated. These include: violent behaviour, drunkenness, profane, indecent or obscene language and noise disturbance to occupiers of other premises.
11 In order to assist the court, the parties referred to a number of cases decided in the Liquor and Planning jurisdictions. In Black v Liquor Licensing Victoria [1] the Tribunal dealt with an application by an operator of a liquor outlet reviewing a decision of the respondent which granted a packaged liquor licence to the owner and occupier of an IGA supermarket. S 38 of the Act allows a person to object to the grant, variation or relocation of a licence if it would detract from or be detrimental to the amenity of the area in which the premises were situated. The Tribunal held that the test to determine whether the granting of a licence would, “detract from or be detrimental to the amenity of the area” is an objective one and does not refer to the effect the granting of the licence would have on the individual objector unless it also effects the amenity of the area. The Tribunal also said that the grounds required to be established are that it would detract from or be detrimental to the amenity of the area itself, and not of an individual, unless they were to find that the personal amenity of an individual objector was also included in the amenity of the area. On this issue, the Tribunal referred to the decision in Broad v Brisbane City Council [2] where Thomas J said that the relevant individuals perceptions of amenity had to be evaluated in the course of ascertaining what the effect of a proposal was on the amenity of the neighbourhood. J de Jersey also accepted that a residents subjective views could be taken into account but in the final analysis, may be given little weight.
[1] [2000] VCAT 459.
[2] (1986) 2 QLD R 317.
12 When discussing the meaning of “amenity”, the Tribunal said that; “it is a wide and flexible term but not as liberal as that used in the planning legislation….it is the wider meaning of the word “amenity” which takes into account the village or community feel of the particular area and the particular characteristics offered by the proposed application and the effects they would have on the particular area in question which are relevant”.
13 In Houle v Director of Liquor Licensing [3] the applicants sought to review a decision to vary a licence of a Hotel relating to external tables and chairs. The tribunal was required to consider whether the granting of the application would “detract from or be detrimental to the amenity of the area”. The Tribunal noted that issues of patron noise and behaviour and parking in the street were within the meaning of the word amenity having regard to the planning decision in Black and the discussion therein by Justice Morris in Zerbes v City of Doncaster and Templestowe [4]. The Tribunal said;[5] “However the amenity of an area and whether there is an adverse impact on it is a relative matter. It is accepted that the level of amenity that can reasonably be expected by residents in a pristine suburb is greater than in an area with existing adverse amenity factors, e.g., a residence in or adjacent to a commercial or industrial area. The classic example is a residence near a hotel”.
[3] [2006] VCAT 20.
[4] [1984] 12 APAD.
[5]Para 18.
14 In Zanos v Melbourne City Council[6] property owners in the Melbourne CBD opposed the use of premises as a licensed bar/tavern catering up to 180 patrons due to amenity impacts caused by music and patrons arriving and leaving the premises late at night and in the early hours of the morning. Nearby buildings were occupied by a mix of commercial and residential activities with nearby apartments being the closest sensitive uses. The Tribunal commented, after referring to planning policy, zoning and the planning scheme that; “over many years and in many cases, various divisions of the Tribunal have commented that residents living close to or abutting non residential zones cannot expect the same level of amenity as residents living in the middle of pristine residential areas. That is even more so when dwellings are located within the CBD and where Council policy clearly recognises that residential amenity is not comparable to residential zones....That does not mean that issues of amenity such as noise should be completely ignored… I consider it unreasonable for residents living within this part of the central city to expect to have the same level of amenity as residents living, for example, in Carlton, East Melbourne or even in Docklands. There is inevitably, and quite reasonably, a trade off between enjoying the superb convenience and proximity to the most significant and vibrant activity centres in Victoria and experiencing increased noise levels and other perceived ‘negative’ outcomes associated with living in such a location. The reality is that residents have to tailor their expectations to the location. If noise levels and other disturbances are intolerable but still within limits set by permits and licences, then residents may need to consider residing in locations that meet their expectations”. After making these comments, the Tribunal also said; “As a general principle I agree…that clear policy support for entertainment venues and a vibrant 24 hour CBD does not mean that residential amenity is sacrificed at the altar of the more commercial uses of the central city area”.
[6] [2006] VCAT 1358.
15 In White Bar Pty Ltd v Port Phillip City Council [7], the Tribunal considered an application involving the issuing of a permit to premises known as The White Bar in Fitzroy Street, St Kilda. Applications relating to a permit and its conditions were opposed by residents living in the upper floors of the building which contained a mix of residential and commercial use including taverns. The White Bar, as part of its entertainment provided recorded music operated by a disc jockey. The Tribunal noted that the planning policy framework identified the area as a major activity centre and tourist area for which the Municipal Strategic Plan required the Council to “balance and cater for the needs of local residents, business and visitors”. The Tribunal also noted that both the planning and liquor legislation provide that the “amenity of the area” should determine applications of this type. It held that the test is; “whether the grant of a planning permit will cause unreasonable impacts upon the amenity of the surrounding area, having regard to the nature of the amenity of that surrounding area”. The tribunal went on to state that a balancing exercise had to be done in relation to the tensions that exist between the residential amenity as opposed to commercial interests. In this case, the Tribunal granted the permit with conditions including that no live music could be played save and accept for that of an acoustic or semi acoustic nature.
[7] [2007] VCAT 275.
Conclusion
16 Mildura is a regional City on the banks of the Murray River with a residential population in excess of 30,000. It is a large tourism area with an envious reputation for its fine dining and sports and leisure activities. Consistent with the objectives of its commercial zoning, its township contains a mixture of food and wine outlets, taverns, hotels, pizza parlours, restaurants, retail shopping stores and other entertainment attractions.
17 It is unsurprising therefore, that those who reside within the commercial zone, or nearby, will from time to time be impacted by noise or other disturbances emanating from the township. This is a natural consequence, or ‘part and parcel’ of living in or near a commercial precinct. Those who elect to do so, receive both the benefits of living close by and the disadvantages of doing so.
18 The ‘amenity of the area’ in question is a mixture of residential and commercial premises with its commercial operations being essential to its entertainment and tourism industry.
19 Bearing these matters in mind, I do not consider that a ‘transient disturbance’ of the nature that occurred in this case constitutes ‘undue detriment to the amenity of the area’ as alleged. If the facts demonstrated a frequent, persistent and prolonged disturbance, I may have reached a different conclusion. A ‘passing impact’ upon the Smith household does not constitute the basis for the charge under s 108 (1)(a).
20 Accordingly, the charge is not proven and will be dismissed.
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