Body Corporate for v Chief Executive, Office of Liquor and Gaming Regulatio
[2011] QCAT 243
•30 May 2011
| CITATION: | Body Corporate for "Seacrest Apartments" v Chief Executive, Office of Liquor and Gaming Regulation [2011] QCAT 243 |
| PARTIES: | Body Corporate for "Seacrest Apartments" |
| v | |
| Chief Executive, Office of Liquor and Gaming Regulation |
| APPLICATION NUMBER: | GAR128-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | G Spender, Member |
| DELIVERED ON: | 30 May 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for a stay is refused. |
| CATCHWORDS: | Administrative review – application for stay of decision to grant approval for a detached bottle shop Queensland Civil and Administrative Tribunal Act 2009, s 22 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Nil |
| RESPONDENT: | Nil |
REASONS FOR DECISION
On 11 May 2011 the Body Corporate of Seacrest Apartments (“the Applicant”) filed an application seeking review of a decision of the Chief Executive (“the Respondent”) of the Office of Liquor and Gaming Regulation made on 11 April 2011 to grant approval for a detached bottle shop at shop 1, 3440 Surfers Paradise Boulevard, to be operated under the authority of the liquor licence held by Mermaid Beach Tavern Pty Ltd (“the Licensee”).
The Applicant seeks a stay of the decision pending determination of the review application. The Applicant and Licensee have filed written submissions in respect of the stay application. The Respondent has declined to make submissions but has confirmed that apart from the Applicant there were no other statutory objectors to the Licensee’s application.
Section 22 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) provides as follows:
22 Effect of review on reviewable decision
(1) The start of a proceeding for the review of a reviewable decision under this Act does not affect the operation of the decision or prevent the implementation of the decision.
(2) However, subsection (1) does not apply if—
(a) an enabling Act that is an Act provides otherwise; or
(b) the tribunal has made an order staying the operation of the reviewable decision under this section and the order is still in effect.
(3) The tribunal may, on application of a party or on its own initiative, make an order staying the operation of a reviewable decision if a proceeding for the review of the decision has started under this Act.
(4) The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following—(a) the interests of any person whose interests may be affected by the making of the order or the order not being made;
(b) any submission made to the tribunal by the decision-maker for the reviewable decision;(c) the public interest.
(5) Subsection (4)(a) does not require the tribunal to give a person whose interests may be affected by the making of the order, or the order not being made, an opportunity to make submissions for the tribunal’s consideration if it is satisfied it is not practicable because of the urgency of the case or for another reason.
(6) In making an order under subsection (3), the tribunal—
(a) may require an undertaking, including an undertaking as to costs or damages, it considers appropriate; or
(b) may provide for the lifting of the order if stated conditions are met.
(7) The tribunal may assess damages for subsection (6)(a).
(8) The tribunal’s power to assess damages under subsection (7) is exercisable only by a legally qualified member.
The Respondent in his letter notifying the Applicant of the decision of 11 April stated as follows:
“Factors involved in the delegate of the Chief Executive’s decision include:
·The bottle shop is considered a shop under the Council’s town planning code. The development approval application was advertised as an impact assessable application and approved with conditions which restrict trading hours to 10pm.
·Council reviewed the traffic and parking implications under the development approval process and approved the use of a bottle shop at the site. There are ample car parking spaces available on site and little evidence that bottle shop patrons would necessarily park in Higman Street.
·The location of the bottle shop within a racing circuit will be addressed by the relevant authorities prior to any racing event.
·The police, local authority and OLGR compliance officers did not provide any objections to the application.
·The delegate of the Chief Executive was satisfied that the amenity (in terms of section 119 of the Act) would not be unduly affected.”
In its submissions the Applicant raises the following public interest concerns in support of the stay application. There is substantial concern on the part of members of the Applicant as well as members of the public as to noise and disturbance caused by young motor vehicle enthusiasts who congregate in the area on Higman Street and Main Beach Parade on several nights of the week. The ready availability of alcohol to these persons will have an adverse effect on the health and safety of members of the public. The area has minimal police presence, there will be an impact on parking in and around the premises and there will be a discharge of rubbish in the area.
In response to these concerns the Licensee submits that there is already a bottle shop within close proximity of the site and there are many detached bottle shops throughout the State which are located in an equivalent environment, including in proximity to takeaway food facilities in restaurants, and such an association does not create material adverse consequences for the community, including impacts such as parking problems and litter.
It is further submitted by the Licensee that the operator of the proposed detached bottle shop will provide lighting and surveillance within the immediate area, including CCTV surveillance and will actively seek to avoid the provision of liquor service to motor vehicle enthusiasts, if any, behaving unlawfully. If necessary and as a further deterrent, the operator of the proposed detached bottle shop will report inappropriate behaviour, if any, to the police. The Surfers Paradise Police Station is located less than a kilometre from the detached bottle shop site. The Licensee further submits that the police and the Gold Coast City Council have no objection to the proposed bottle shop; the Licensee has operated detached bottle shops in Surfers Paradise for many years without incident; and there is more than adequate on-site parking for the anticipated customers at the bottle shop.
The requirements pursuant to section 22 (4) of the QCAT Act involve essentially a determination of where the balance of convenience lies as between the interests of the Licensee on the one hand and the interests of the objector Applicant and the public interest on the other hand.
The Licensee will in the Tribunal’s view suffer significant commercial detriment if a stay is granted. The Licensee has been granted approval to operate the bottle shop; has substantially completed preparations to open the business; and intended to commence trading on or about 31 May 2011. The Tribunal is satisfied having regard to the lack of objection by members of the public other than the Applicant, and the lack of objection by the police and the Gold Coast City Council, that there is no immediate risk to the health and safety of the members of the Applicant or to members of the public from the operation of the bottle shop in the short period before the substantive application is heard and determined. The balance of convenience favours the refusal of the stay.
[10] Having had regard to the matters set out in section 22(4) of the QCAT Act, the Tribunal considers that a stay is not desirable, and the Tribunal will order that the stay application be dismissed.
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