Hoffman & Anor v State of Qld

[1997] QSC 29

IN THE SUPREME COURT

OF QUEENSLAND
  No. 7627 of 1996

Brisbane

Before Mr Justice Ambrose

[Hoffman & Anor v. State of Qld]

BETWEEN:
  GRAEME LESLIE HOFFMAN and
  BERNADETTE MAREE McCORMACK
  Plaintiffs
AND:
  THE STATE OF QUEENSLAND
  Defendant

CATCHWORDS: INTERPRETATION - s. 187 Liquor Act 1992-1994 - whether notices issued pursuant to s.187 were valid.

Counsel:Mr G. Martin  for the plaintiff

Mr J. Rolls for the defendant

Solicitors:Lippiatt and Co for the plaintiffs

Queensland Crown Solicitor for the defendant

Hearing Date:              6 February 1997

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered 06/03/1997

This is an application by motion pursuant to RSC O.57 for injunctions restraining the defendant from taking steps to ensure compliance by the plaintiffs with notices given to them by an investigator employed by the Liquor Licensing Division of the Department of Tourism, Small Business and Industry purportedly in pursuance of s.187 of the Liquor Act 1992 - 1994.  The plaintiffs claim that each of two notices given on 17 October 1996 and 30 October 1996 is invalid.  They seek a declaration to this effect and the consequential restraining orders to which I have referred.
           At the hearing of the application it was conceded that in the circumstances it would be appropriate for me merely to grant the declaratory relief sought by the plaintiffs if their case was made out.
           In my view the drafting of the section leaves much to be desired.  It is convenient to set out the factual matters which do not seem to be in dispute before turning to the terms of the legislation to see if the plaintiffs have made out their contentions as to the validity of the two notices given.
           For some years, the plaintiffs have conducted a business under the name of "Boulevard Tropical Gardens Restaurant" at Indooroopilly.  That business involves use of premises licensed under the Liquor Act for the sale of liquor to persons attending functions at the restaurant.  The first plaintiff is the licensee of the restaurant and the second plaintiff, his wife, is his nominee.
           The business is conducted in an area proximate to residential development. 
           Over the road from the premises the occupiers of a residence have apparently complained from time to time to the Liquor Licensing Division about noise emanating from the premises in the night time during the provision of entertainment at functions held there.
On 13 October 1996 acting upon the complaint of a resident investigators attended his residence and using sound level analysing and measuring equipment took readings of the level of noise emanating from the plaintiff's premises between 10.38 p.m. and 10.56 p.m. The investigators then went to the licensed premises and spoke to the second plaintiff and advised her of the result of their measurements etc. and informed her that it was proposed to issue a notice under s.187 of the Liquor Act.  This was issued at about 12.01 a.m. on 14 October 1996.
           The relevant part of the notice read:

"In accordance with the provisions of Section 187 of the Liquor Act 1992, you are required to diminish the noise emanating from the above named premises so that a nuisance is no longer created. To ensure continued compliance with this Requisition, you are to ensure that noise emanating from the premises does not exceed the recommended noise limits specified in the attached Noise Schedule until further notice."

It is unnecessary to refer in detail to the schedule.  It suffices to say that it is there clearly stated that during the night period any noise emanating from licensed premises must not exceed the background noise level by more than 8 dB and that during the day/evening period any noise emanating from licensed premises must not exceed the background noise level by more than 5 dB(A).  From the schedule it seems that the period from 12 noon to 10 p.m. is "day/evening" and the period from 10 p.m. to 12 noon is categorised as "night".
           It seems then that the notice given on 14 October 1996 required that the noise emanating from the licensed premises not exceed the background noise level by more than 8 dB during the "night period".
           Various other notices were given when complaint was made about the noise level generated by the entertainment provided at functions on the licensed premises and all seem to have been given after investigations had been made during the night time period.
           On 17 October 1996 a second notice was purportedly given to both plaintiffs in lieu of that given on 14 October 1996 and an earlier one given in May 1996, to which I will refer briefly in a moment. It is convenient to refer to the content of that notice which is the first one which the plaintiffs seek to have declared invalid.  It reads:

"In accordance with the provisions of Section 187 of the Liquor Act 1992, you are required to diminish the entertainment noise emanating from the above named premises so that a nuisance is no longer created.  To ensure continued compliance with this Requisition, you are to ensure that noise emanating from the premises does not exceed the recommended noise limits specified in the attached Noise Schedule until further notice."

I infer that attached to this notice of 17 October 1996 was a schedule in terms similar to that attached to the one served on 14 October 1996, to which I have already referred.
           On 27 October 1996 a further complaint was received by the Liquor Licensing Division concerning noise emanating from the plaintiff's premises.  An inspector attended at the complainant's residence at about 11 p.m. and measured the noise level outside the complainant's bedroom which faced directly towards the licensed premises.  The inspector was aware of the requisition of 17 October 1996 requiring diminution of noise emanating from those premises so as to eliminate noise nuisance.
The measurement taken on 27 October 1996 demonstrated that the then level of noise emanating from the licensed premises exceeded the limit imposed by the requisition dated 17 October 1996. A further requisition dated 30 October 1996 was served upon the licensee by handing it to somebody who was in charge of the licensed premises at the material time. The second requisition purportedly given pursuant to s.187 of the Liquor Act reads:

"In accordance with the provisions of Section 187 of the Liquor Act 1992, you are required to cease the amplification of music and voice in the Terrace Room at the above named premises, until further advised by the Liquor Licensing Division, so that a nuisance is no longer created.

This requisition is issued as the result of the failure to comply with the Section 187 requisition dated 17/10/95 which required that noise emanating from this premises be diminished to the level specified in that requisition. ...".

Evidence was adduced that earlier requisition notices had been served on the plaintiffs by the Liquor Licensing Division requiring that the plaintiff diminish entertainment noise emanating from the licensed premises.  They were served on 31 March 1996 and 22 May 1996 respectively.  The one served on 22 May 1996 purported to cancel and replace that issued on 31 March 1996. Each of those requisitions had attached to it a schedule of noise limits similar in form to that attached to the notice served on 17 October 1996 - the first of the notices in respect of which the plaintiffs claim relief upon this application.
           To the extent that it is relevant, it does not appear on the material whether all the complaints made to the Department were from the same or from different persons.
Before turning to the submissions made upon the application it is convenient to refer to the relevant parts of s.187 of the Liquor Act. That section provides, inter alia:

"187.(1) This section applies if an investigator believes on reasonable grounds that -

(a)noise coming from licensed premises ... is -

(i)a nuisance to persons ... occupying other premises near the licensed premises; or

(ii)...

...

(2) The investigator may give written notice to the licensee, permittee, or person who appears to be in charge of the premises, requiring that -

(a)the noise stop or be reduced to, and kept at, a level that is no longer a nuisance; or

(b)the premises be closed immediately.

(3) If the notice is contravened, the investigator may take all steps necessary and reasonable to ensure compliance, or continued compliance, with the notice."

For the plaintiffs it is contended that the notice given on 17 October (the first requisition) is invalid because s.187(1) only permits a requisition to be so formulated as to achieve either abatement of nuisance or diminution of noise so that a nuisance is not continued. It is contended that it does not authorise any form of prohibition operative quia timet during a time before any noise nuisance is actually created. It is further contended that the requirement of the first notice that the plaintiffs comply with the attached noise schedule so that the noise emanating from the licensed premises not exceed a background noise level by more than 8 dB was not authorised by the express terms of the Act and was therefore ineffective. It is contended shortly that s.187 of the Act gives the Liquor Licensing Division no general power to deal with noise emanating from licensed premises and once a nuisance has ceased - i.e. once the noise investigated by the Department has stopped so that no noise arguably constituting a nuisance is then being produced - there is no power in the Department to give any requisition forbidding the making of noise above a specified level at some time in the future which might arguably amount to a nuisance. It is contended that the only power the licensing branch has is to wait until there is noise emanating from licensed premises which in fact constitutes a nuisance and to then issue a requisition that it cease.
The plaintiffs do not shrink from contending for this construction of s.187 even though the inevitable result would be to permit licensing inspectors only to require the abating for the time being of noise amounting to a nuisance without having power to constrain or inhibit by any means the creation of a similar nuisance in the future - even presumably within minutes or hours of the giving of the requisition.
It is contended for the plaintiffs that the second requisition issued on 30 October 1996 was also invalid. It was invalid because on its face it relied upon a failure of the plaintiffs to comply with the first requisition. It was contended that the only valid power the licensing inspector had under s.187 was to issue a requisition requiring a diminution of noise. It is said that there is no power under s.187 to give a notice requiring that amplification of music and voice cease until further advised by the Liquor Licensing Division. It is said that upon its proper construction s.187(2)(a) gives a power only to require that noise "stop" and can only relate to the particular noise to which the requisition is directed and not to noise in general. In essence the contention is that the section only permits an inspector to go to a licensee while excessive noise is being generated on the licensed premises and require that that very noise be stopped and/or reduced.
           It is further contended that it could not be said in the circumstances that the giving of a notice in the terms of that given on 30 October 1996 was "reasonable". 
Although the matter was argued by consent of both parties on the basis that I would make a declaration as to the validity of the notices given purportedly pursuant to s.187 of the Liquor Act, the alleged invalidity of those notices was based upon the construction of that section advanced on behalf of the plaintiffs.  I propose to look at the facts which were not really in issue upon the application argued and make a declaration as to the power of the inspector to give each of the two requisitions on the facts canvassed and not in dispute and not to embark upon a consideration as to whether the requirement of the second notice of 30 October 1996 "could be said to be reasonable in the circumstances".
           Counsel arguing the application were unable to refer me to any part of the Liquor Act or regulations which provide for determination afresh of the noise level in fact emanating from the licensed premises and whether or not it could be said to amount to a nuisance should the plaintiffs wish to dispute those matters. Similarly I was referred to no part of the Act or regulations where the giving of the second notice could be challenged on the ground that it was not reasonable to give it in those terms "in all the circumstances". It is unnecessary for me to embark upon consideration of avenues that may be open to the plaintiff to have reviewed the bases upon which each of the two requisitions was given.  It suffices to say that in my view this is not the occasion to consider such matters.
The first thing to notice about s.187(1)(a) is that it talks about the belief of an investigator on reasonable grounds that noise coming from licensed premises is a nuisance to persons occupying other premises nearby. Although the section is somewhat inelegantly drafted the intention of s.187(1) seems to be to confine to the circumstances there specified the power given to an investigator under s.187(2) to give a written notice of requisition requiring that the noise stop or be reduced to and kept at a level that is no longer a nuisance.
I would read s.187(1) as requiring that an investigator honestly believe on reasonable grounds that noise emanating from licensed premises constitutes a nuisance before he is empowered to give a notice under s.187(2)(a).
The construction problem arises from the fact that the written notice requiring that "the noise stop ..." can only refer to the "noise" referred to in s.187(1)(a) which is not required by that section to amount to a nuisance but only required to be a noise that the investigator believes on reasonable grounds to amount to a nuisance.
When one comes to s.187(2)(a) "the noise" which obviously refers back to the noise which the investigator believes on reasonable grounds amounts to a nuisance may be required to be reduced to and kept at a level "that is no longer a nuisance". It is only towards the end of s.187(2)(a) that there is reference made to "a nuisance" as distinct from a noise which an investigator on reasonable grounds believes to be a nuisance.
It is quite unnecessary under the terms of s.187(1) for a nuisance in fact to emanate from licensed premises before a notice may be given under s.187(2)(a) unless one implies from the last part of s.187(2)(a) that a valid notice must not merely be based upon the belief held by an investigator on reasonable grounds that a noise constitutes a nuisance but also that that noise does objectively speaking constitute a nuisance.
           On the facts of this case which are not in issue, I proceed on the basis that the investigators involved in giving the written requisitions for noise abatement to the plaintiffs could be said to have believed on reasonable grounds that the noise emanating from the plaintiff's premises amounted to a nuisance at the site where the level of noise was measured.
There was placed before me a draft policy plan prepared apparently by the Department of Environment and Heritage relating to the protection of residents from levels of noise emanating from entertainment centres. I will not attempt to dissect or analyse that document, but comment merely upon the fact that it seems clear enough that the noise schedule attached to the notice given by the licensing branch investigator to the plaintiffs on 17 October 1996 was based upon the policy considerations outlined in that document. What reason there was for drafting s.187 to permit constraint of "noise nuisance" in those wide and rather vague terms rather than simply specifying the maximum noise level that may emanate from licensed premises at a specified distance from it is difficult to understand.
"Nuisance" is undefined in the Act. A noise nuisance under s.187(1) and (2) in my view amounts to unusual or excessive noise which in the circumstances materially interferes with the ordinary comfort of persons living in the neighbourhood of the source of the noise. In this respect I refer to Spencer v. Silva (1942) SASR 213 at 219-220 per Mayo J.
           In Cooper v. Bormann (1979) 42 LGRA 157, Mitchell J, at p. 160, construed the word "nuisance" in a section under the Local Government Act giving power to make by-laws for the prevention of a nuisance to mean "nuisance at common law". With some hesitation I construe s.187(2)(a) of the Act as empowering the giving of a valid notice only in respect of noise which does in fact amount to a nuisance at common law. For a notice then to be valid and have legal effect under s.187(2)(a) not merely must the investigator believe on reasonable grounds that the noise referred in it constitutes a nuisance but that noise must in fact constitute a nuisance.
           On the material canvassed upon the application there is nothing to suggest that the investigator giving the notice on 17 October 1996 did not believe on reasonable grounds that the noise emanating from the plaintiffs' premises on 14 October did constitute a nuisance at common law.  A similar observation may be made with respect to the belief of the investigator who measured noise levels on 27 October 1996. Whether those noise levels did constitute such a nuisance or whether any noise which emanates from the licensed premises in the night time which exceeds by more than 8 dB the background level of noise in the area generally can be said to amount to a nuisance at common law as distinct from a breach of the policy guidelines of the Department of Environment and Heritage is not a matter that was really canvassed on the evidence and it is unnecessary and would be quite inappropriate for me to express any view on those matters upon an application of this sort.
If the plaintiffs seek to challenge the assertion of the defendant that the noise levels measured at material times upon which the written requisitions are based or founded did not in fact constitute a "nuisance" at common law which is what is meant by that term in s.187(1) and (2) of the Liquor Act that is a matter which ought be canvassed in another proceeding with the assistance of expert opinion of the sort to which no doubt regard was paid in the preparation of the environmental protection policy which seems to be the basis of the noise schedule attached to the requisition of 17 October 1996.
An investigator is given wide powers to ensure compliance and indeed "continued compliance" with any notice given under s.187 and there is nothing in the material before me to support the proposition that the notice of 30 October 1996 requiring the plaintiffs cease amplification of the sound of music and voice in the Terrace Room on their licensed premises until further advised "so that a nuisance is no longer created" is beyond the power given to the investigator under ss.187(2)(a) and (3) of the Act.
           I decline to make either of the declarations sought by the plaintiffs.
I declare that if in fact noise emanating from the plaintiffs' licensed premises exceeded the limits recommended in the schedule to the requisition dated 17 October 1996 and did at material times constitute nuisance within the meaning of s.187 of the Liquor Act 1992 both the requisition dated 17 October 1996 and that dated 30 October 1996 are upon their face valid and have the statutory force given to them by that section.

           I dismiss the plaintiffs' motion.
           I order that the plaintiffs pay to the defendant its costs of and incidental to the application to be taxed.