Erskine & Office of Regulatory Services & Ors (Administrative Review)
[2010] ACAT 90
•16 December 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
STEPHEN ERSKINE & OFFICE OF REGULATORY SERVICES & ORS(Administrative Review) [2010] ACAT 90
AT 22 of 2010
Catchwords: Permit to place objects on footpath – noise from licensed premises operating in permit area- obligation to consider people nearby when issuing permit – objective test – times when permit in operation – form of permit.
List of Legislation: Roads and Public Places Act 1937 ss15B(c)(ii),15B(g), 15C(2)(c)(ii), 15D, 15E, 15G(2)(b), 15K
ACT Civil and Administrative Tribunal Act 2008 s10(3)(2)
Tribunal: Mr A. O’Neil, Senior Member
Mr C. Chenoweth, Member
Date of Orders: 16 December 2010
Date of Reasons for Decision: 16 December 2010
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 65 of 2010
BETWEEN:
STEPHEN ERSKINE
Applicant
AND:
OFFICE OF REGULATORY SERVICES
Respondent
SUBURBAN PTY LTD AS TRUSTEE FOR
SUBURBAN UNIT TRUST
Party Joined (1)
MR S KOCHINOS
Party Joined (2)
Tribunal: Mr A. O’Neil, Senior Member
Mr C. Chenoweth, Member
DATE: 16 December 2010
ORDER
The Tribunal orders the Respondent to vary the permit as follows:
1. So that moveable objects may only remain in the permit area between 10.30am and 12.00 midnight from Monday to Sunday;
2. So that the permit lists those objects that are required to be moved as well as those objects that are not required to be moved; and
3. So that the permit contains a plan showing the position of those objects that are required to be moved as well as those objects that are not required to be moved.
………………………………..
Mr A. O’Neil
Senior Member
REASONS FOR DECISION
Mr Stephen Erskine (“the Applicant”) applied to the ACT Civil and Administrative Tribunal (“the Tribunal”) on 16 April 2010 for the review of a decision made on 5 December 2008 to grant to Mr Socrates Kochinos a permit (T4) to place objects in a public place (“the permit”). The decision was made by Mr Roger Sharp as delegate of the Minister under section 15C of the Roads and Public Places Act 1937 (“the Act”).
The public place referred to in the permit is on the footpath at the corner of Woolley and Cape Streets, Dickson, immediately outside the premises of Sub-Urban, a business in respect of which Mr Kochinos holds the liquor licence. The permit allows for the placing of objects on public land and in the present matter refers to placing objects including tables and chairs to allow eating and drinking in outside areas at specified times.
The Applicant, who lives nearby, complains about the noise generated from the permit area and seeks a reduction in its hours of operation.
The legislation
The relevant sections of the Act are as follows:
15BApplication for permit
An application for the grant of a permit to place an object in, over or across a public place must—
(a)be made in writing to the Minister and signed by or for the applicant; and
(b)state the place for which the permit is sought; and
(c)be accompanied by a plan clearly showing—
(i)the location, boundaries and dimensions of the place for which the permit is sought; and
(ii)if it is not proposed to move the object while the permit is in force—the proposed position of the object in, over or across the place; and
(d)clearly indicate the nature of the object and give details of its design and size; and
(e)state the intended use of the object; and
(f)state the proposed hours the object will remain in, over or across the place; and
(g)give details of any measures proposed to be adopted for using the object to safeguard the health and provide for the safety, comfort and convenience of people using the place or a place next to or near the place; and
(h)if installation or construction work is proposed to be carried out in or on the place to place the object in, over or across the place—
(i)state the nature of the work; and
(ii)give details of the methods to be employed in the execution of the work; and
(iii)give details of any measures proposed to be adopted for the work to protect the safety of people using the place or a place next to or near the place.
15CGrant or refusal of permit
(1) The Minister must consider each application for a permit and must—
(a)approve of the grant to the applicant of the permit; or
(b)refuse to grant the permit to the applicant.
(2) For subsection (1), the Minister must have regard to—
(a)whether the place is a suitable place in, over or across which to place the object; and
(b)whether the object will be structurally sufficient, safe and stable; and
(c)the interests of the public and, in particular—
(i)whether the object, placed in, over or across the place, would be likely to be to the benefit or detriment of people using the place or a place next to or near the place; and
(ii)whether adequate provision is proposed to be made for the use of the object to safeguard the health and provide for the safety, comfort and convenience of people using the place or a place next to or near the place; and
(d)the interests of people carrying on business near the place and, in particular, the interests of a person carrying on a business near the place similar to the business carried on by the applicant (if any); and
(e)if installation or construction work is proposed to be carried out in or on the place to place the object in, over or across the place—
(i)whether it is desirable to allow the work to be carried out in or on the place; and
(ii)whether the work will be suitable for the purpose; and
(iii)whether adequate provision is proposed to be made for the work to protect the safety of people using the place or a place next to or near the place.
15DGrant of permit—conditions
The Minister may approve the grant of a permit under section 15C subject to any of the following conditions:
(a)the object must be of a type or design stated by the Minister;
(b)the object must be properly maintained and must not become structurally insufficient, unsafe or unstable;
(c)the holder of the permit must not allow the object, whether directly or indirectly, to adversely affect the health or safety of a person using the place or a place adjacent to or near the place;
(d)adequate provision must be made for the disposal of refuse and waste from, and for the drainage of, the place;
(e)during the hours between sunset and sunrise that the object is in the place, the place must be illuminated in a way that clearly indicates the object;
(f)the place must be fenced or enclosed to prevent a person being endangered or inconvenienced by the object;
(g)any installation or construction work to be carried out in or on the place for placing the object in, over or across the place must be carried out in a proper, skilful and safe way;
(h)the applicant must be insured against the risk of liability that may be incurred because of the object for—
(i)death, bodily injury or illness; and
(ii)loss of, or damage to, property.
15EGrant of permit
(1) If the Minister approves of the grant to an applicant of a permit, the Minister must notify the applicant in writing of the grant and of any conditions the permit is subject to and must issue the permit to the applicant.
NoteA fee may be determined under s 9A (Determination of fees) for this section.
(2) A permit granted under this Act must clearly identify the place for which the permit is granted and must state—
(a)the name and address of the person to whom the permit is granted; and
(b)the object permitted to be placed in, over or across the place; and
(c)the use to which the object may be put; and
(d)the hours when the object may remain in, over or across the place; and
(e)the period for which the permit is granted; and
(f)the conditions (if any) to which the permit is subject.
15GReview by ACAT
(1) If the Minister makes a reviewable decision, the Minister must give a reviewable decision notice to each entity mentioned in schedule 1, column 4 in relation to the decision.
Note 1The Minister must also take reasonable steps to give a reviewable decision notice to any other person whose interests are affected by the decision (see ACT Civil and Administrative Tribunal Act 2008, s 67A).
Note 2The requirements for reviewable decision notices are prescribed under the ACT Civil and Administrative Tribunal Act 2008.
(2) The following may apply to the ACAT for review of a reviewable decision:
(a)an entity mentioned in schedule 1, column 4 in relation to the decision;
(b)any other person whose interests are affected by the decision.
NoteIf a form is approved under the ACT Civil and Administrative Tribunal Act 2008 for the application, the form must be used.
(3) In this section:
reviewable decision means a decision mentioned in schedule 1, column 3 under a provision of this Act mentioned in column 2 in relation to the decision.
15JTerm of permit
A permit, unless surrendered or cancelled, remains in force for the period, not longer than 12 months, stated in the permit.
15KRenewal of permit
(1) If the holder of a permit applies to the Minister for its renewal, whether the application is made before or after the end of the permit's term, the Minister must renew the permit.
NoteA fee may be determined under s 9A (Determination of fees) for this section.
(2) If the Minister renews a permit—
(a)the permit continues in force for the period, not longer than 12 months, stated in the renewal; and
(b)that period begins at the end of the period when, apart from its renewal, the permit would have been in force.
(3) The Minister must not renew a permit if the object the permit relates to has been removed under section 15N (1).
The hearing
The Applicant represented himself at the hearing. The Respondent was represented by Mr G McCarthy of counsel, instructed by the ACT Government Solicitor’s Office. The party joined, Suburban Pty Ltd as trustee for the Suburban Unit Trust (“Suburban Pty Ltd”), was represented by Mr Kukules-Smith of Kamy Saeedi Lawyers. During the hearing it became clear that Mr Kochinos might be affected by the Tribunal’s decision. He has a substantial interest in Suburban Pty Ltd as well as holding the liquor licence for the premises trading as Sub-Urban and Belluci’s. Mr Kukules-Smith contacted Mr Kochinos by telephone and was instructed to represent him at the hearing. The Tribunal then joined Mr Kochinos as a party to the proceedings.
Jurisdiction
The Tribunal accepts that the Applicant is a person whose interests are affected by the decision, being a person within the contemplation of section 15C(2)(c)(ii) of the Act, and that he is entitled to seek review by the Tribunal of the decision under section 15G(2)(b) of the Act. Although the decision was made on 5 December 2008 the Applicant did not receive notice of it until 30 March 2010. He applied to the Tribunal for a review on 16 April 2010 which is within the time required by section 10(3)(a) of the ACT Civil and Administrative Tribunal Act 2008.
During the hearing the Tribunal asked whether an issue of jurisdiction arose because the grant of the permit on 5 December 2008 was for a period that expired on 15 October 2008 (T4). The parties proposed that the Tribunal had jurisdiction because of the terms of the Act. Mr McCarthy argued that because a renewal of the permit under section 15K of the Act is not reviewable and the Minister (or delegate) has no discretion not to renew, the effect of the original decision is permanent and on-going and not limited by the expiry of the original permit. He pointed to the meaning of “renew” in the Oxford Dictionaries Online which included “to extend the period of validity of (a licence, subscription or contract)” or, as in the present case, a permit. There is also nothing in the Act that permits the Minister (or delegate) to amend the terms of the permit, which supports the proposition that the original permit has continuous effect. The Tribunal accepts that it has jurisdiction to hear the application for review.
The evidence
On the first day of the hearing the Tribunal inspected the permit area, the premises Sub-Urban and the location of Mr Erskine’s apartment across Cape Street from Sub-Urban. His apartment is located in a three-storey building known as Coventry. There are several restaurants on the ground floor with seven residential apartments on the upper floors. A taxi rank is located in Cape Street below Mr Erskine’s apartment. On the morning of the inspection the Tribunal observed that traffic along Cape Street, especially motor cycles, was noisy. The Tribunal noted that the permit area contained fixed seating and a permanent umbrella.
Mr Erskine gave evidence of the loud noise that emanates late at night and in the early hours of the morning from the permit area and also from other adjacent areas such as the taxi rank. He said that noise from the inside of the licensed premises licensed premises was, in his view, at an acceptable level. He enjoyed the “urban buzz” associated with living in such a location and acknowledged that “vocal noise is inherent to the nature of the restaurant/bar precinct”. However he said that party groups and boisterous late night drinkers are very noisy, “whooping and hollering, singing, encouraging sculling and other drinking games”. He concluded that it sounded “like there is a party happening right on my balcony”. He was most concerned about loud noise in the early morning and late at night when he was trying to sleep. Noise in the early part of the night was of less concern to him. His evidence is that he would like the permit area to close at 10.00pm.
Mr Erskine also provided 12 short video recordings to demonstrate the noise levels he has experienced in his apartment. The noise was produced from a variety of sources: cars and motorcycles, people waiting for taxis, cleaning activities in the permit area and people in the permit area. The earliest recordings were made around 7.00 pm and the latest around 1.00 am but the dates and days of the week were not noted.
Mr Erskine acknowledged that Sub-Urban had voluntarily changed the way the bar operated in an attempt to accommodate his concerns. He said that Sub-Urban had started to close the permit area earlier, at midnight, and had ceased serving alcohol for consumption in the permit area after 11.00pm. In his view these measures had only a minimal impact on the volume of noise. Indeed he said that the earlier closing of Sub-Urban meant that patrons were ejected in a group and milled around outside the front door talking loudly. Thus although the intention of the licensee was to be helpful the measure had been counter-productive.
Mr Erskine did not call any witnesses. He said that many other occupants of the apartments were transient tenants and engagement with them was difficult. He believed that residents had complained when Sub-Urban reopened, but the Tribunal can give no weight to this belief in the absence of anything more specific.
Mr Robert Southwell, an experienced compliance inspector, gave evidence for the Respondent. He said that he had conducted 20 inspections of Sub-Urban between March 2009 and June 2010. He provided a list of the days, dates and times of his inspections. His earliest inspection was at 8.15pm and the latest at 1.05am. Five inspections were after midnight and nine were between 11.00pm and midnight. All except three were on Friday and Saturday nights. Nine of the inspections were made after the Respondent and Mr Southwell became aware of Mr Erskine’s complaints about noise. One of those inspections was at 9.50pm on 25 March 2010. Mr Southwell said that on that occasion he stood in Cape Street across from Sub-Urban and could not distinguish noise from the permit area over the ambient noise. He said that on his various inspections when he spoke with the security staff at the entrance to Sub-Urban he did so at normal voice level. He commented that noise levels at Sub-Urban were no higher than in the Dickson precinct generally or in the outdoor areas of other similar establishments - O’Neills and Zeffarelli’s – which are further along Woolley Street. He said that he had observed security staff intervening when patrons were drinking while not seated or when they had become noisy. He said that he had no “compliance issues” with Sub-Urban.
The Tribunal accepts that both witnesses are truthful and reliable but that they have different perceptions of the noise levels in the area.
Obligation to consider people nearby
The Applicant argued that the decision-maker is required under section 15C(2)(c)(ii) of the Act to have regard to the interests of the public and, in particular, whether adequate provision has been made for the use of the object to provide for the comfort and convenience of people in a place next or near to the permit area.
Section 15B(g) of the Act requires the applicant for a permit to give details of any measures proposed to be adopted for using the object placed in the permit area to provide for the comfort and convenience of people using a place next to or near the permit area. This reinforces the obligation to consider the interests of people nearby.
The Tribunal find that the Applicant is a person whose apartment is near the permit area and whose comfort and convenience must be taken into account in considering the grant of a permit under section 15C of the Act. Section 15D of the Act permits the grant of a permit subject to conditions. Section 15 E requires certain matters to be set out in the permit, including the hours when the object may remain in, over or across the place.
Section 15 B(c)(ii) of the Act contemplates a situation where the object remains in place while the permit is in force. It is the Tribunal’s view that the permit should recognise that the permit area contains two types of objects: some not intended to be moved while the permit is in force and others that must be moved each night. A new plan to form part of the permit should be drawn up to show those objects which will remain in the permit area together with their position, as required by section 15B(c)(ii).
Urban Buzz or Unwanted Noise?
The Tribunal accepts that loud noise at night has been a problem for Mr Erskine and that some of this noise has emanated from the permit area of Sub-Urban. Other noise has come from the Sub-Urban premises but not from the permit area, for example when patrons leave the premises at closing time. Other noise is unrelated to Sub-Urban, for example the noise from the taxi rank or traffic noise. The Tribunal is limited in this case to considering the arrangements for the permit area and any noise that results from its operation.
Having regard to the evidence of both Mr Erskine and Mr Southwell and having been assisted in understanding the nature of the area as a result of the inspection during the course of the hearing, the Tribunal is of the view that much of the loud noise does not emanate from the permit area, although some it does. The evidence of Mr Erskine and Mr Southwell is not necessarily inconsistent but may simply relate to different incidents at different times. Mr Erskine did not supply dates so that a direct comparison of the incidents is not possible.
When the permit area is used it is inevitable that some patrons may make loud noises, for example by shouting or singing, even if security guards are reasonably prompt in reducing the noise to a reasonable level. If a resident living nearby is trying to sleep at that time then it will disturb that person’s comfort or convenience. But what if that resident wishes to go to sleep at 9.00pm and is thus disturbed early in the night? Is the decision-maker required to take into account such subjective matters or is a more general approach which balances the interests of all parties acceptable?
It is the Tribunal’s opinion that the general or objective approach is the correct one to adopt in applying the Act. The perception of noise can vary from person to person, as is borne out by the evidence of the Mr Erskine and Mr Southwell. There is also no evidence before the Tribunal of other residents making complaints. The closure of the permit area at midnight seems to the Tribunal to balance the interests of nearby residents and those of business operators in the area.
The Tribunal notes the efforts of Sub-Urban to operate in such a way as to reduce the noise from the permit area, including voluntarily reducing the hours at which it serves liquor for consumption in the permit area. It also observes that it has no power under the Act to limit when alcohol may be served for consumption in the permit area. The Tribunal may only limit the time when objects are placed or used in the permit area.
The form of the permit
Some confusion seems to have arisen as to what is a renewal and what is a new permit. The old permit number was continued on the issue of a new permit on 5 December 2008. Once the details of a permit are changed the Act requires that a new permit must be applied for. This is how the present matter has been approached and in the Tribunal’s view is correct. To be consistent a new number should be allocated for the new permit.
The Respondent tendered a draft policy document on Outdoor Cafes in Public Places (Exhibit 3). Clause 3.1 of the Draft Policy obliges the permit holder to remove the objects placed there from the permit area at the end of the permitted time each day unless a development approval issued by the ACT Planning and Land Authority in respect of anything permanently fixed to the public land.
Section 15B(c)(ii) of the Act contemplates a situation where the object remains in place while the permit is in force. It is the Tribunal’s view that the permit should recognise that the permit area contains two types of objects: some not intended to be moved while the permit is in force and others that must be moved each night. A new plan to form part of the permit should be drawn up to show both categories of objects.
……………………………..
Mr A. O’Neil
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AT 10/22
APPLICANT: STEPHEN ERSKINE
RESPONDENT: Office of Regulatory Services
PARTY JOINED 1: Sub-Urban Pty Ltd
PARTY JOINED 2: Mr S. Kochinos
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT: Ms Mathie, ACT Gov Solicitor
PARTY JOINED 1: Mr Kukules-Smith, Kamy Saeedi Lawyers
PARTY JOINED 2: Mr Kukules-Smith, Kamy Saeedi Lawyers
OTHER: APPLICANT: Self
RESPONDENT:
TRIBUNAL MEMBER/S: Mr A. O’Neil – Senior Member
Mr C. Chenoweth - Member
DATE/S OF HEARING: 17 September 2010 PLACE: CANBERRA
DATE/S OF DECISION: 16 December 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
0
0
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