CAFTOR PTY LTD T/AS MOOSEHEADS PUB AND REGISTRAR OF LIQUOR LICENCES

[2006] ACTAAT 34

AUSTRALIAN CAPITAL TERRITORY

ADMINISTRATIVE APPEALS TRIBUNAL

CITATION:CAFTOR PTY LTD T/AS MOOSEHEADS PUB AND REGISTRAR OF LIQUOR LICENCES [2006] ACTAAT 34 (15 DECEMBER 2006)

AT04/87

Catchwords:Liquor licensing – determination of occupancy loading – method of calculation required by part D1.13 of the building code – relevant considerations.

Administrative Appeals Tribunal Act 1989, ss 43, 43B

Liquor Act 1975, ss 40, 41, 43, Pt 5

Civic Tavern Pty Ltd and Registrar of Liquor Licences [1995] ACTAAT 128 (22 December 1995)

Tribunal:Mr M H Peedom, President

Date:  15 December 2006

AUSTRALIAN CAPITAL TERRITORY             )
ADMINISTRATIVE APPEALS TRIBUNAL           )           NO:  AT04/87
GENERAL DIVISION  )

RE:           CAFTOR PTY LTD T/AS
  MOOSEHEADS PUB
  Applicant

AND:           REGISTRAR OF LIQUOR
  LICENCES
  Respondent

DECISION

Tribunal  :           Mr M H Peedom, President

Date  :           15 December 2006

Decision  :          

The decision under review in relation to the second floor of the licensed premises is varied by substituting 152 for 136.

……………………..
  President

AUSTRALIAN CAPITAL TERRITORY             )
ADMINISTRATIVE APPEALS TRIBUNAL           )           NO:  AT04/87
GENERAL DIVISION  )

RE:           CAFTOR PTY LTD T/AS
  MOOSEHEADS PUB
  Applicant

AND:           REGISTRAR OF LIQUOR
  LICENCES
  Respondent

REASONS FOR DECISION

15 December 2006  Mr M H Peedom, President

Background

The applicant in this case is the holder of an ON licence (No. 505) under the Liquor Act 1975 (“the Liquor Act”). The licence relates to premises located in London Circuit, Canberra City, known as “Mooseheads Bar”. The licensed premises comprise a basement, ground, first and second floor levels.

2.  In December 2002 the licensed premises were extensively damaged by fire and subsequently rebuilt so as to extensively upgrade, reconfigure and increase the size of the premises.

3. It is a requirement of section 40 of the Liquor Act that the respondent make a decision in respect of licensed premises which identifies those parts of the premises that are indoor public areas and those parts which are outdoor public areas and notify the chief officer (fire brigade) of the decision. The re-opening of the rebuilt premises called for the making of such a decision in respect of them.

4.  On 8 July 2004 the respondent determined that each of the 4 levels of the refurbished building was a licensed area and identified, by markings on plans, the indoor public area of each level.

5. It is also a requirement of section 41 of the Liquor Act that the respondent decide an occupancy loading of an indoor public area in accordance with that section. Section 41 relevantly provides:

41           Occupancy loadings—indoor public areas

(1)           In this section:

occupancy loading, in relation to an indoor public area, means the maximum number of people that the area can accommodate without involving a contravention of the building code, part D1.6.

(2)The chief officer (fire brigade) must, on receiving notice of the decision of the relevant decision-maker under section 40(1), notify the registrar in writing of the recommendation of chief officer (fire brigade), made having regard to the building code, part D1.13, about the occupancy loading of each relevant indoor public area.

(3)On receiving the recommendation of chief officer (fire brigade), the registrar must, by written notice given to the relevant licensee or applicant for a licence, decide the occupancy loading for each relevant indoor public area.

(4)In deciding the occupancy  loading for an indoor public area, the registrar—

(a)must have regard to the recommendation of chief officer (fire brigade); and

(b)may have regard to any other relevant matter, including, for example, the following:

(i)the fittings and standard of fittings available for the area; or

(ii)the location, standard and number of toilets available for the area.

…………………….

6.  On 14 July 2004 the chief officer (fire brigade) notified the respondent of his recommendation of safe occupancy loadings for the licensed premises as follows:

Basement      135 persons
           Ground Floor   192 persons
           First Floor   293 persons
           Second Floor   136 persons

7.  On 22 July 2004 the respondent accepted the recommendation of the chief officer (fire brigade) and made a decision which reflected it.  The chief officer (fire brigade) subsequently revised his recommendation in respect of the second floor to 152 persons and the respondent indicated his preparedness to accept that recommendation.

8. An application for review of the respondent’s decision was lodged with the Tribunal on 27 July 2004. On 1 March 2005 the Tribunal dismissed the application pursuant to section 43(6)(a) of the Administrative Appeals Tribunal Act 1989 (“the AAT Act”) because of the failure of the applicant to proceed with the application within a reasonable period of time. On 26 April 2005 the Tribunal reinstated the application pursuant to section 43(1) of the AAT Act and gave directions as to the future conduct of the proceedings. The directions were subsequently varied on a number of occasions at the request of the parties, primarily to allow additional expert evidence to be obtained, and the hearing of the application commenced on 20 February 2006. The hearing was adjourned on 22 February 2006 at the request of the applicant to enable additional scientific evidence to be obtained.

9.  At a resumed hearing of the application, commencing on 29 November 2006, the parties advised the Tribunal that agreement had been reached by them as to the occupancy loading in respect of the basement, ground and first floor levels as follows:

Basement      135 persons
           Ground Floor   192 persons
           First Floor   320 persons

10. On 1 December 2006 the Tribunal made a decision pursuant to section 43B of the AAT Act affirming the respondent’s decision in respect of the basement and ground floors and varying the respondent’s decision in respect of the first floor by substituting 320 persons as the occupancy loading of the floor level.

11.  As a consequence of the Tribunal’s decision dated 1 December 2006, the only remaining issue to be resolved by the proceedings is the occupancy loading in respect of the second floor level.

12.  Further agreement was reached by the parties that the maximum number of people that the area of the second floor level could accommodate without involving a contravention of part D1.6 of the building code was 260.  Part D1.6 imposes requirements for the dimensions of exits and paths of travel of occupants to exit to ensure that they are of sufficient height and width to permit the ready movement of persons who may be seeking egress during an emergency and to ensure that they are adequate to assist fire brigade and other emergency personnel who may need to enter the building.

13. Disagreement remained, however, between the parties as to the extent, if at all, to which the other matters required by section 41(2) and section 41(4) of the Liquor Act to be taken into account required the occupancy loading to be reduced below the maximum number permitted by part D1.6 of the building code.

Part D1.13 building code

14.  Part D1.13 of the building code provides as follows:

D1.13           Number of persons accommodated

The number of persons accommodated in a storey, room or mezzanine must be determined with consideration to the purpose for which it is used and the layout of the floor area by—

(a)calculating the sum of the numbers obtained by dividing the floor area of each part of the storey by the number of square metres per person listed in Table D1.13 according to the use of that part, excluding spaces set aside for—

(i)lifts, stairways, ramps and escalators, corridors, hallways, lobbies and the like; and

(ii)service ducts and the like, sanitary compartments or other ancillary uses; or

(b)reference to the seating capacity in an assembly building or room; or

(c)any other suitable means of assessing its capacity.

Table D1.13

AREA PER PERSON ACCORDING TO USE

Type of Use  m² per person

……….
Bar  - bar standing  0.5
  - other  1
…………  ……..  …….
Dance floor  0.5
……….  ……..  ……

Notes to table:

Bar standing is the area used by standing patrons and extends not less than 1.5m wide from the outside edge of the bar top for the length of the serving area of the bar.

15.  In making the calculation required by part D1.13(a) the respondent did not include the bar and service area behind it in the floor area of the second floor level.  On behalf of the applicant, Mr P Walker, of counsel, submitted that the bar and the service area should be included as part of the floor area.  He also submitted that counters fixed to two of the internal walls and to part of fixed seating in the bar room should be regarded as bar standing areas and calculated at the same rate as that specified for bar standing in table D1.13.  In his submission there was no justification for excluding those parts of floor areas occupied by what were to be regarded as the kinds of furnishings that were ordinarily to be found in premises used for a particular purpose, particularly as the kind of fixtures and furnishings to be installed would not necessarily be known at the time of any approval being given to the construction of the building, at which time the calculation of the number of persons to be accommodated, would need to be made.  A bar and service area, he submitted, were part of the ordinary furnishings of licensed premises. 

16.  Mr Walker also relied upon the definition of “floor area” in the building code relevantly as the area of the floor of a storey measured over the enclosing walls including “the area occupied by any internal walls and partitions, any cupboard, or other built-in furniture, fixture or fitting” (see Part A1 definition of “floor area”, paragraph (b)(ii) and also paragraph (c) in relation to a room).

17. In my opinion, the submission should not be accepted. The reference in section 41(2) to part D1.13 of the building code does not call for a determination of the floor area of an indoor public area. Section 41(2) requires the formula specified in table D1.13 to be taken into account in relation to the area that has been pre-determined by the respondent pursuant to section 40(1) as an indoor public area. It does not call for the application of part D1.13 to areas that have not been determined by the respondent as indoor public areas pursuant to section 40(1). Accordingly, the area of the bar and service area behind it should not be included as part of the floor area in making the calculation required by part D1.13(a).

18.  In relation to the other fixed counters, the notes to the D1.13 table make it clear, in my view, that the area to which the 0.5m² per person rate is applicable is the area immediately adjoining the bar service area.  While it may be accepted that the density of patrons forming a queue to obtain bar service in the area immediately adjacent to the bar is likely to be greater than other parts of the bar room, there is no basis, in my opinion, for making a planning assumption that the density of patrons would be double that of other parts of a bar room merely because of the presence of a fixed counter.

19.  I therefore conclude that the number of persons to be accommodated in the indoor public area of the second floor level calculated in accordance with part D1.13 is 152.

20.  The question arises, however, as to the manner in which the number calculated in accordance with D1.13 is to be applied.

21.  Consideration was given to that issue by the Tribunal in Civic Tavern Pty Ltd and Registrar of Liquor Licences [1995] ACTAAT 128 (22 December 1995). In that case, the Tribunal said:

The function of Part D1.13, in its context in the BCA, is not to provide a limit on the numbers of persons who may be accommodated in premises of the specified types.  It is to provide a means of calculating the expected populations of premises according to their uses for the purpose of determining what will be required in the building in the way of exit widths according to Part D1.6.

22. The Tribunal considered that the clear intention of the Liquor Act was that occupancy loadings were to be determined primarily having regard to fire safety considerations but that, in doing so, regard was also to be had to the number of persons who could be accommodated according to the purpose for which the premises were to be used. It emphasised that part D1.13 did not deal with fire safety but with the expected population of premises according to their use.

The respondent’s evidence

23. At the hearing of the appeal the respondent, Mr A Brown, gave evidence of the matters which he took into account pursuant to section 41(4) of the Liquor Act. He said that it had been part of his responsibilities since 1989, when he was appointed Registrar of Liquor Licences, to determine the occupancy loadings for licensed premises. In his experience, a density of persons above approximately .65m² - .70m² per person for bar/tavern/disco type premises made it more difficult for the licensee to control the premises so as to maintain an acceptable standard of patron behaviour; to enable disturbances to be managed; to fulfil the obligations imposed by the Liquor Act in relation to issues such as preventing the service of alcohol to intoxicated and underage persons; and to control occupancy numbers. Greater density increased the propensity for social disturbance and made it difficult for security staff to deal with it. He also said that greater densities restricted the capacity of a licensee to keep the conduct of patrons under observation and also restricted the ability of licensing inspectors and police to obtain access to the premises and deal with contraventions of licensing legislation.

24. Mr Brown produced in evidence records of the Liquor Licensing Board which provided details of decisions made by it in respect of breaches by the applicant of the Liquor Act and the action taken by the Board in respect of them:

• 22 November 1998:           exceed approved occupancy loading –

penalty of $200, licensee directed to provide details of counting of patrons for approval.

• 21 February 1999:           exceed approved occupancy loading –

penalty $400, licensee directed to implement procedures approved by Board.

• 7 July 1999:              exceed approved occupancy loading –

penalty $500.

• 17 October 1999:           exceed approved occupancy loading –

reprimand.

• 13 October 2001:           allow under age person to enter bar –

penalty $1,500.

• 6 June 2002:              allow under age person to enter bar –

penalty $1,500, suspended for 6 months.

• 11 September 2005:           exceed approved occupancy loading –

licence suspended for 2 days to take effect in the event of further breaches within 12 months.

25.  In cross examination Mr Brown agreed that, in general, there were good sight lines within the licensed premises to enable bar and other staff to keep the conduct of patrons under observation but he noted that there may be some restriction due to the presence of seating within the bar room.  In general, he also regarded the standard of fittings within the licensed premises to be of high quality and he accepted that security staff working in the licensed premises were required to undergo training in crowd control and first aid. 

26.  Mr Brown agreed that he had not, in his capacity as Registrar, determined an occupancy loading in excess of the rate determined by him in accordance with table D1.13.  But he considered that, in general, the number of persons determined in accordance with part D1.13 reflected a number that enabled licensees to discharge their responsibilities and protect the public.  He said that he had been involved in the development of policy with other government agencies and stakeholders regarding the occupancy loadings to be adopted by part D1.13 of the building code and the number of persons adopted by table D1.13 had taken account of factors which included the need for people to move amongst the patrons of licensed premises, the need for inspectors to discharge their duties without interruption and the fact that patrons may be affected by alcohol.

27. Mr F A Bakker who was the chief officer (fire brigade) at the time the recommendation in this case was made pursuant to section 41(2) of the Liquor Act also gave evidence on behalf of the respondent. When questioned as to the manner in which he had had regard to part D1.13, he agreed that he had never made a recommendation for the purpose of section 41(2) of the Liquor Act that would result in a number of persons greater than that calculated in accordance with part D1.13. He said, however, that in making his recommendation, based on his experience as a senior fire brigade officer, he considered that the numbers of persons derived from part D1.13 for licensed bar premises provided reasonable guidance as to the appropriate occupancy loading having regard to the movement of persons in the premises, their evacuation and fire brigade operations.

The applicant’s evidence

28.  Evidence was given on behalf of the applicant by Ms N Miladinovic, one of its directors.  She said that the second floor area was staffed by 2 security guards, 4 bar staff and 3 floor staff.  A security camera had been installed to enable observation to be made of the stair area so as to prevent the exchange of drugs.  The security staff were first aid trained and all staff required to undergo induction/evacuation procedures.  Evacuation procedures were discussed at monthly staff meetings.  Quarterly training for emergency and evacuation procedures was provided by an external security agency.  Attendance at meetings was recorded and new staff were issued with fire and policy manuals which were summarised and explained by a manager.

29.  In cross-examination, Ms Miladinovic said that since March 2005 to February 2006 there had been a turn-over of up to 40 floor staff, 30 bar staff and 13 or 14 security staff.  All of the staff were employed on a casual basis.  She said that no record was kept by the applicant that staff had read the manual provided to them, nor was any record kept, as required by the manual, of the steps taken to implement it.  She accepted that some of the staff may not have read it.  She said that training for the applicant’s emergency control organisation had been provided in-house and not by a qualified fire-fighter.

30.  Mr R Kilmartin, an accredited fire safety engineer, gave evidence on behalf of the applicant.  Mr Kilmartin is a principal director of Scientific Fire Services Pty Ltd and has extensive experience as a fire safety consultant.

31.  In a report of a fire safety engineering assessment of the licensed premises undertaken by him, Mr Kilmartin highlighted improved fire safety features associated with them as part of their refurbishment following the fire damage which occurred in December 2002 and provided a qualitative comparison between the systems installed in the premises (“the PDS”) with the standards necessary to be deemed to satisfy the requirements of the building code (“the DTS standards”).

32.  The comparative analysis showed that the PDS sprinkler system for sprinkler protection to the building met the DTS standard; the PDS smoke management system achieved smoke extraction of >10m³/sec to the level 2 floor of fire origin whereas there was no specific smoke management system required by the DTS standard; whereas the DTS standard only required a smoke detection system to shut down the air conditioning and imposed no requirement for the activation of an alarm system, the PDS smoke detectors activated a building specific smoke hazard management system and internal alarm notification to staff; fire hydrants, fire hose reels, portable fire extinguishers, emergency lighting and exit signage had been installed in accordance with the DTS standards; the rear stairs had been provided with automatic self-closing doors that closed upon activation of either smoke detection or sprinkler activation whereas the DTS standard imposed no requirement for doors separating level 2 from level 1; the PDS included a Building Occupant Warning System in accordance with the same standards of the building code that were required by the DTS standard for an emergency warning and intercom system; and emergency evacuation plans had been provided by the PDS whereas the DTS standards did not impose such a requirement.

33.  Mr Kilmartin said that the automatic sprinkler system installed in the licensed premises had a very high level of reliability and, if soundly managed, it was anticipated that the performance and effectiveness of the system would achieve the desired goal of controlling a fire event thus limiting the impact of fire.  He explained that the building code only required licensed premises to have one or other of two forms of fire control, either sprinklers or smoke extraction.  The licensed premises were fitted with both.  Whereas the building code specified a smoke extraction rate of 6-7m³/sec the system installed in the licensed premises had a rate of 11m³/sec.  Under the deemed to satisfy provisions of the building code the smoke layer height quickly dropped to about 1.0m whereas the installed smoke extraction system would briefly permit the smoke layer height to drop to about 2.20m and then be held at about 2.5m.  The available safe evacuation time of occupants under the deemed to satisfy requirements of the building code of 140 seconds was increased to +2000 seconds under the installed system.  In his opinion the fire safety arrangements for the licensed premises were far superior to the fire safety arrangements that were deemed to satisfy the requirements of the building code.

Submissions and conclusions

34.  In his submissions on behalf of the applicant, Mr Walker contended that the respondent’s approach to the determination of the occupancy loading in this case was flawed.  He relied upon the fact that Mr Brown had not approved an occupancy loading in excess of the number calculated in accordance with D1.13, nor had Mr Bakker recommended such a number, as demonstrating that they regarded themselves as bound, subject to the maximum number determined in accordance with part D1.6, to determine a loading derived from the application of part D1.13 rather than relying upon it for guidance and that they had failed to give consideration to the fact that the standard of fire safety achieved in the licensed premises was far superior to that required by the building code.

35.  The evidence given by Mr Brown and Mr Bakker does not, in my view, justify a conclusion that they approached the task of determining an occupancy loading in the manner submitted.

36.  The evidence of Mr Brown makes it clear, in my view, that he gave consideration, not merely to a formula, but also to the considerations that had given rise to it.  Specifically, he identified the need for people to move amongst patrons, the need for inspectors to discharge their duties without interruption and the fact that patrons may be affected by alcohol as some of the factors that were taken into account in fixing the formula.

37. It is also clear from Mr Brown’s evidence that, in addition to the formula, his decision took into account his own experience in assessing the number of persons beyond which difficulties were created for licensees in controlling the conduct of patrons, the management of disturbances and controlling occupancy numbers. Such matters are, in my view, relevant and properly to be taken into account pursuant to section 43(4)(b) of the Liquor Act, if not included as part of the considerations that gave rise to part D1.13.

38.  In the absence of other evidence to support a conclusion that, in the circumstances of this case, an occupancy loading greater than that determined by the respondent could adequately avoid the kind of difficulties identified by Mr Brown, his evidence should be accepted by the Tribunal.

39.  Mr Walker submitted that Mr Kilmartin’s evidence demonstrated that as the fire safety standard achieved by the applicant was far superior to that required by the building code, failure to recognise that fact would be inimical to public safety as it would create a disincentive to licensees to make a financial commitment to anything other than basic fire safety standards.

40.  Mr Kilmartin’s evidence was accepted by the respondent as accurately representing the capacity of the fire management systems installed by the applicant in the licensed premises.  His evidence provides strong support for a conclusion that, based solely on considerations of fire safety, the maximum number of persons calculated in accordance with D1.6 should be permitted.  It does not, however, justify other relevant considerations being ignored.

41. While the kinds of matters referred to by Mr Brown in his evidence may be subject to the control mechanisms contained in Part 5 of the Liquor Act, there is nothing in the Act, in my view, to suggest that Part 5 is the exclusive means of addressing such issues.

42.  I therefore conclude that the occupancy loading for the indoor public area of the second floor of the licensed premises should be 152.

FORM 33

PUBLICATION DETAILS

TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________

PART A  FILE NO:           AT04/87

APPLICANT:CAFTOR PTY LTD T/AS MOOSEHEADS PUB

RESPONDENT:           REGISTRAR OF LIQUOR LICENCES

PARTY JOINED:           N/A

COUNSEL APPEARING:           APPLICANT:           MR P WALKER

RESPONDENT:           MR I NASH

PARTY JOINED:           

SOLICITORS:  APPLICANT:           HIGGINS SOLICITORS

RESPONDENT:           ACT GOVERNMENT SOLICITOR

PARTY JOINED:    

OTHER:  APPLICANT:           

RESPONDENT:           

PARTY JOINED:           

TRIBUNAL MEMBER/S:           MR M H PEEDOM, PRESIDENT

DATE/S OF HEARING:           1 MARCH 2005,  PLACE: CANBERRA

20-22 FEBRUARY,

16-17 MAY, 29-30 NOVEMBER,

1 DECEMBER 2006

DATE OF DECISION:           15 DECEMBER 2006               PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( )              CASE NOTE ( )           UNREPORTED DECISION (X)
COMMENTS: