Ginardi v Chief Executive Officer, Office of Liquor and Gaming
[2014] QCAT 152
| CITATION: | Ginardi & Ors v Chief Executive Officer, Office of Liquor and Gaming & Ors [2014] QCAT 152 |
| PARTIES: | Carmelo Ginardi Peter Scally Murray Webb Catherine Scally Elodie Scally Jill Butler (Applicants) |
| v | |
| Chief Executive Officer, Office of Liquor and Gaming (First Respondent) Girraween Estate Pty Ltd (Second Respondent) GBBC Pty Ltd (Third Respondent) |
| APPLICATION NUMBER: | GAR173-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 9 December 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan |
| DELIVERED ON: | 11 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Chief Executive Officer, Office of Liquor and Gaming is confirmed. |
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – LIQUOR LICENCE – WINE INDUSTRY SATELLITE CELLAR DOOR LICENCE – where liquor licence already in place in premises – where necessary to excise part of liquor licence to accommodate satellite cellar door – whether different conditions could or should be imposed on satellite cellar door licence – where adverse effect on the amenity Liquor Act 1992 (Qld), ss 21, 23, 33, 34, 58, 187 Butler & Ors v Commissioner Liquor and Gaming (No 2) [2013] QCAT 428 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self represented |
| FIRST RESPONDENT: | Mr D Robinson, Solicitor of the Office of Liquor and Gaming |
| SECOND RESPONDENT: | Mr Sydes (GBBC Pty Ltd |
| THIRD RESPONDENT: | Mr Sydes (GBBC Pty Ltd) |
REASONS FOR DECISION
The applicants reside in Helen Street Teneriffe, an inner city Brisbane suburb made up of a mixture of commercial and residential uses.
In May 2012 the Commissioner for Liquor and Gaming (‘CLG’) granted a Producer/Wholesale Licence (‘PWL’) to GBBC Pty Ltd (‘GBBC’) enabling it to operate a boutique beer producing and retail venue called the Green Beer Brewery (‘GBB’). GBB is in Helen Street, in close proximity to the applicants’ residences.
Some local residents (including the applicants) objected to the granting of that licence as they had concerns about the impact of the operation on the amenity of the area. Those objectors reviewed in this Tribunal the decision of the Commissioner to grant that licence. On review the Tribunal decided to confirm the decision.[1]
[1]Butler & Ors v Commissioner for Liquor and Gaming (No 2) [2013] QCAT 428.
Prior to that review being determined the Chief Executive Office of Liquor and Gaming (‘Chief Executive’) made a decision to grant two Queensland wineries (Girraween Estate and Bents Road Winery) licences permitting them to establish a satellite cellar door (‘SCD’) within the GBB premises.
The applicants had objected to the granting of the SCD licences. They now seek to review the decision of the Chief Executive to grant the SCD licences.
The owner of the premises out of which GBB operates (GBBC) and one of the wineries (Girraween Estate Pty Ltd) were joined as respondents in these review proceedings.
The Review
The decision to grant the SCD licences was made under the Wine Industry Act 1994 (Qld). Section 33 of that Act combined with s 21 and s 23 of the Liquor Act 1992 (Qld) establishes the right of the applicants to review that decision in QCAT.
The Tribunal must conduct the review by reviewing the evidence that was before the Chief Executive and in accordance with the law that applied at the time the decision was made.[2]
[2]Wine Industry Act 1994, s 33(1); Liquor Act 1992, s 33(1)(a) and (b).
The Tribunal’s role in these review proceedings is to make the correct and preferable decision[3] on the evidence before it and according to law, after a fresh hearing on the merits.[4] For the purposes of the review, the Tribunal stands in the shoes of the original decision maker.[5]
[3]Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’), s 20(1).
[4]QCAT Act, s 20(2), 19.
[5]QCAT Act, s 19(c).
The Decision
The wineries were the holders of Wine Producer Licences (‘WPL’) under the Wine Industry Act (‘the Act’). In June 2002 they both applied for approval under s 15(3) of the Act to sell/give their wine at a SCD (that is a premises other then premises to which their WPL related). The SCD was to be within the GBB premises.
They indicated in their application that GBBC wanted to showcase local Queensland wines to compliment their Queensland brewed beer. The SCD would provide that opportunity.
Under s 58(3) of the Liquor Act a wine licence and liquor licence may only be held over the same if the licensees are the same person. This was not going to be the case here so it was decided that the area proposed for the SCD had to be excised from the PWL of GBBC to progress the approval of the SCD.
The wineries agreed that they would not seek a condition allowing consumption of the wine on the premises. The resulting effect was to be that their wine could be sold to patrons of GBB from the SCD (in a sealed bottle) to either take away from GBB premises or to consume on GBB premises in the area subject to GBBC’s PWL.
The SCDs were situated side by side being a display area each measuring .65 metres x 1.3 metres and consisting of a counter on top of a fridge and some shelving.
The applications were advertised in accordance with the requirements of the Act.[6] The closing date for objections was 14 February 2013. Objections were lodged by the applicants.
[6]Section 25(1)(a).
The Act[7] prescribes the grounds upon which an objection may be made as:
(a)undue offence, annoyance, disturbance or inconvenience to people living in the locality or travelling to or from an existing or proposed place of public worship, hospital or school in the locality; or
(b)the amenity, quiet or good order of the locality would be adversely affected in some way.
[7]Wine Industry Act, s 26(2)(d); Wine Industry Regulation 2009, s 8.
The objectors concerns were as follows:[8]
a) The sound emission from GBB exceeded the 75 dB(c) limit. (The limit imposed on GBBC’s PW licence). The SCD licences had the potential to exacerbate the current noise problems.
b) Under the existing licence, neighbours have had to endure unacceptable social behaviour from patrons eg public urination, vomiting, undue noise from patrons outside the brewery, smoking, speaking on telephones and waiting for taxis. People drinking wine as well as beer could cause further episodes of drunken and disorderly behaviour.
c) The potential for an increase in traffic congestion, patron and taxi movement which would cause additional noise.
d) The hours of operation for the satellite cellar door was unacceptable with the majority of other takeaway liquor outlets closing at 8 to 10 pm. This was likely to attract more people to the area to purchase alcohol late at night when unavailable at other outlets.
e) The premises did not have a proper kitchen and proper meals were not being served.
[8]As summarised in First Respondents submissions at [35].
Mr Messiter, the owner of Girraween Estate, responded to the objectors concerns advising that:[9]
a) Many of the objections related to the GBB operation rather than the SCD. The wineries would work with GBBC to ensure the noise limits were complied with.
b) The premises had adequate toilet facilities and as such there was no reason for patrons to urinate in the street. Prominent signage has been erected to remind patrons to leave quietly.
c) There had only been one occasion when police had been called and that was a result of someone being refused service.
d) Parking is available in adjacent streets, especially after hours. In any event the SCD would be unlikely to result in a significant increase in the traffic in the area.
e) The SCD is not another bottle shop as it is restricted to selling wine produced in Queensland. The trading hours are standard for the industry and match GBBC’s licence.
f) GBBC serves food at the premises consistent with the responsible service of alcohol guidelines.
[9]Statement of Reasons, page 187.
Prior to making a decision on the application the Office of the Chief Executive undertook further enquiries and investigations as to the appropriateness of the licences.
The Brisbane City Council did not respond to a request to comment on the application.
The Queensland Police Service in a letter to OLGR of 8 January 2013[10] advised that there were no grounds to object to the application.
[10]Statement of Reasons, page 105.
A senior licensing officer (Mr Bob Smith) undertook a community impact/risk assessment analysis of the applications and provided a report dated 11 April 2013 to the principal licensing officer.[11]
[11]Statement of Reasons, page 195.
Mr Smith concluded, after considering the submissions, that if the satellite cellar doors were properly conditioned there would be no reason why management could not reduce the impact on the community to an acceptable level due to:
· There being no objections from police, council or OLGR compliance unit;
· The sale of wine, although not insignificant, would not be a major component in the business, but would allow a broader range of products to be sold other than GBBC’s beer.
· Conditions were proposed that would limit the escape of noise from within the brewery and crowd dispersal.
· The actual impact of the cellar doors applications would not be great but both licensees would be accountable for any amenity issues.
· Considerable progress had been through the complaint process which would continue to be available.
Mr Smith set out what he considered to be the appropriate conditions to be placed on the SCD licences including that wine could only be sold for consumption off the licence area or for wine tasting on the licensed area; noise was not to exceed 75 dB(c); non-amplified entertainers or speakers were not to be located in any outdoor area; management were to purchase and make use of a noise meter to take readings of noise from the premises; the roller door and louvers were to be kept closed during trading hours; staff were to contact taxi services for patrons; patrons were to wait outside the premises while waiting for taxi’s; the licensee was to maintain a complaint register; adequate signage was to be in place to ensure that patrons were mindful not to disturb neighbours when entering or leaving the brewery and a crowd controller be engaged from 11:00pm on Friday’s, Saturday’s and nights before public holidays to maintain surveillance outside the brewery.[12]
[12]Statement of Reasons, page 200, 201.
On 3 May 2013 the Chief Executive (through the general manager licensing) on the recommendation of the Acting Manager and the Director Licensing approved the SCD licences subject to a number of the conditions (although not all) recommended by Mr Smith.
The Applicants’ Position
The applicants raised seven arguments in their application as to why it was not the correct and preferable decision to grant the SCD licences.
At the hearing they indicated that they essentially wished to rely on two arguments:
1. The decision to allow the licence contravened the provisions of the Liquor Act and the Wine Industry Act; and
2. The decision maker failed to take into account the impact that the sale of wine to patrons would have on the amenity, particularly the increase in noise.
The applicants’ submitted the granting of the licence contravened the legislation in that the area of the SCD licences had not been excised from the PWL licence and as such were in breach of s 58(3) of the Liquor Act. That section prohibits the granting of a wine licence over premises already held under a liquor licence unless the licences are held by the same person.
At the hearing the representative for the Chief Executive acknowledged that the material provided to the Tribunal and to the applicants did not include evidence of the decrease in the area covered by the liquor licence.
A varied liquor licence was produced at the hearing (dated the same day as the SCD licences). This varied licence indicated that the new licenced area was the premises “excluding two SCD for Girraween Estate and Brents Road located on the ground floor, each measuring 650mm x 1130mm”.
In subsequent written submissions the applicants say that the Tribunal cannot take the varied licence into account as that document was not before the decision maker when the original decision was made. They say it is new evidence before the Tribunal which the Chief Executive must get leave to produce.[13]
[13]Liquor Act, s 33, s 34.
Whilst I acknowledge it would have been preferable for there to have been evidence of that variation proceeding the granting of the SCD licences, there were other documents produced[14] that indicated the OLG had formed the view that the liquor licence had to be varied to excise the area for SCD Licences before those licences could be granted. That evidence is consistent with a finding that the licence variation did not come after the decision was made to grant the SCD licences. I find therefore that the granting of the SCD licences were not in breach of s 58 as the liquor licence area had been excised from the liquor licence.
[14]Statement of Reasons, pages 210, 242 and 375.
The applicants’ also submit that the involvement of Brents Road and Girraween is in fact a sham to allow GBB to sell the wine. They say the property in the wine passes to GBB once it is delivered to the venue and it is actually sold by GBB.
I am satisfied on the basis of submissions made by the representative of the Chief Executive at the hearing that the wine in fact remains the property of the wine licensees until sold to patrons. As a matter of practicality, the wine is probably being sold by staff of GBB on behalf of the wineries however this does not make the sale of the wine in contravention of the legislation.
I reject the applicants submissions that the granting of the licence was in contravention of the legislation.
The applicants concede that their main argument against the granting of the licences is the negative impact on the amenity of their neighbourhood particularly the noise level.
What is the correct and preferable decision
Should the application for SCD Licence be refused?
In order to succeed in having the decision to grant the SCD licences overturned on the basis of a negative impact on the amenity, the applicants would need to have persuaded the Chief Executive and this Tribunal on review that the SCD licences would in themselves have an unreasonable adverse impact on the amenity of the locality over and above that already occurring as a consequence of the operation of GBB.
Mr Smith commented in his report that the conduct of the SCD’s in themselves was not a concern but he did concede that the actual building may have difficulty in containing the noise generated by an increase consumption in beer and wine.[15]
[15]Statement of Reasons, page 200.
Despite those concerns he did not consider it necessary to reject the application. He considered the imposition of certain conditions on the licence would prevent the potential negative impact from becoming unreasonable.
Against the possibility of an adverse impact on the amenity, the decision maker had to take into account the positive impact the granting of the licence may have not only to the owners of the licence but also in fostering the growth of the Queensland wine industry.[16]
[16]See Wine Industry Act – Objectives s 3(6).
Should further conditions be imposed?
The applicants correctly point that further conditions to prevent the negative impact on the amenity were recommended by Mr Smith but not imposed by the decision maker. They say if the application was not refused then at the very least all of the conditions proposed by Mr Smith should have been imposed. These conditions include the purchase and use of a noise meter for the purpose of taking readings; the shutting of the roller door and louvers during trading hours or alternatively the supply of an acoustic report which addresses the time and circumstances when the door and louvers may remain open without exceeding the allowable noise limits contained in the report.
Both the liquor licence and the SCD licences have conditions imposed limiting noise levels to 75dB(c) when measured approximately three metres from the primary source of the noise.
The applicants’ have two concerns with this condition. Firstly they say that the noise level is not adequately regulated. In support of this argument they point to s 40 of the Liquor Regulations.[17] Section 40 provides the definition of ‘unreasonable noise’ for the purposes of s 187(5) of the Liquor Act which provision provides power to an investigator to give notice to a licensee if he believes the noise from a licensed premises is unreasonable. “Unreasonable” is defined as levels of more than 6d(b) from 10 pm to 6 am. The applicants’ argue that those figures should have been taken into account when imposing conditions on the licence rather than the current level of 75dB(c).
[17]Liquor Regulations 2002 (Qld).
I do not think it was unreasonable for a noise level of 75dB(c) to be imposed. That would appear to be consistent with the licensed venues in the area[18] and in any event was the noise level which was imposed on GBB.
[18]Butler & Ors v Commissioner Liquor and Gaming (No 2) [2013] QCAT 428 at [22].
They also submit that following the granting of the liquor licence the noise levels are in fact exceeding what is reasonable.
Complaints had been made to the Office of Liquor and Gaming about the noise levels emitting from GBB. These complaints have been investigated. A senior compliance officer from the Brisbane inspections unit visited the premises on two occasions and found that no unreasonable noise emissions were detected.[19] The applicants say these visits were conducted at times when the premises were not busy and therefore shouldn’t have been relied on by the decision maker in concluding that the standard noise conditions on the liquor licence were being met.
[19]Statement of Reasons, page 258.
The problem for the applicants’ in this review is the fact that the GBBC licence is already in place with certain conditions imposed. The decision to grant that licence was reviewed and confirmed by this Tribunal. The Tribunal decision was not appealed.
The SCD licences exist within the same premises.
The difficulty with the applicants argument that the additional conditions proposed by Mr Smith should be imposed is that those conditions go further than the conditions imposed on GBBC in respect of its licence. It would be impracticable to make orders imposing for example different noise regulating conditions on the SCD as they take up a very small space in the building from which GBB operates.
The same comments apply to the other conditions recommended by Mr Smith including the presence of a crowd controller.
The applicants feel that it is appropriate these additional conditions be placed on the whole of the premises. This however ignores the fact that the liquor licence and the conditions imposed have been reviewed and confirmed by this Tribunal. It is not appropriate to impose those conditions on GBB indirectly by imposing them on the granting of the SCD licences. This review is not an opportunity to indirectly impose further conditions on GBBC’s licence.
I find that the decision of the Chief Executive to allow the application with the conditions imposed is the correct and preferable decision. There was no evidence before the decision maker to suggest that the negative impact of the proposed SCD was so much greater than existed as a result of GBBC’s licence so as to warrant its refusal. The decision maker appropriately in my view adopted those conditions recommended by Mr Smith which could practically be imposed on the SCD licence and which did not go beyond those already imposed on the GBBC licence.
Whilst I accept that the concerns of the applicants particularly regarding the noise levels are genuine I concur with the position of the Senior Member in the GBB decision that the remedy for the applicants if the conditions imposed are not complied with is to continue to make complaints to the OLG and the Chief Executive. The maintenance of the SCD licences and consequently the GBBC licence should be at risk if they ignore the conditions imposed.
0
1
0