Hyde v Chief Executive, Office of Liquor and Gaming and Anor
[2012] QCAT 13
•17 January 2012
| CITATION: | Hyde v Chief Executive, Office of Liquor and Gaming and Anor [2012] QCAT 13 |
| PARTIES: | Graham Hyde (Applicant) |
| v | |
| Chief Executive, Office of Liquor and Gaming (First Respondent) Glenhaven Holdings Pty Ltd (Second Respondent) |
| APPLICATION NUMBER: | GAR030-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 2 November 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Member |
| DELIVERED ON: | 17 January 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That the decision of the Chief Executive, Office of Liquor and Gaming Regulation dated 14 February 2011 is confirmed. |
| CATCHWORDS: | LIQUOR LICENSING – DETACHED BOTTLE SHOP – where objections regarding the community impact statement; alleged non-compliance with legislative requirements, adherence to Guidelines issued by chief executive and observance of objects of legislation ADMINISTRATIVE LAW – application of policy and guidelines Queensland Civil and Administrative Tribunal Act 2009, ss 19, 20, 21 Australian Unity Health Ltd v Private Health Insurance Administration Council [2000] FCA 769 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr M McDonald of Counsel, instructed by Liquor and Gaming Specialists |
| RESPONDENT: | Mr D Robinson of Counsel, instructed by Chief Executive, Office of Liquor and Gaming for First Respondent Mr Gary Watt, director of Glenhaven Holdings Pty Ltd for Second Respondent |
REASONS FOR DECISION
A delegate of the Chief Executive, Office of Liquor and Gaming Regulation (OLGR), made a decision on 14 February 2011 to grant an approval for a detached bottle shop (DBS) at 180 Wood Street in Warwick to Glenhaven Holdings Qld Pty Ltd. Glenhaven holds a commercial hotel licence for the Warwick Hotel.
The proposed DBS is in a complex containing a service station, a bait and tackle shop and the DBS. The grant was made on conditions as follows:
a)Any advertising signage must not be located on the barrier between the petrol bowsers and the bottle shop or be visible from the petrol bowsers area of the service station tarmac;
b)An impermeable barrier 1.8m in height and of sufficient width to effectively block line of sight visibility from the premises to the petrol bowsers, must be maintained on the boundary of the service station tarmac;
c)No advertising with respect to price is allowable externally, within 150m of the bottle shop; and
d)Liquor prices displayed in the internal area of the bottle shop should not be able to be seen externally.
An objector to the application, Mr Hyde, has sought a review of the decision. Mr Hyde’s wife holds a licence for the Palace Hotel in Warwick and has an authority for a DBS in a shopping centre about 350-400 metres from 180 Wood Street. That DBS has been in its present location for some 18 years.[1]
[1] File documents 179.
Under section 33 of the Liquor Act 1992 (the Act), the review must be heard and decided by way of reconsideration of the evidence before the chief executive when the decision was made and in accordance with the law that applied at the time the decision was made. In this case, it is common ground, and I accept that it is correct, that the Act as contained in Reprint 9G which contained all amendments that commenced before 1 December 2010 was in force as at the date of the OLGR’s decision. Unless otherwise stated, references in these reasons for decision are references to Reprint 9G.
OLGR provided a List of evidence and other material for the chief executive and copies of those documents (the File documents) in compliance with section 21(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009.
Under section 34 of the Act, new evidence may be allowed with the leave of the tribunal. Without objection, leave was granted at the hearing to Mr Hyde to rely upon new evidence, namely four photographs of the completed DBS site and surrounding complex.
The tribunal must decide a review application in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) and the enabling Act under which the decision was made.[2] When exercising its jurisdiction, the tribunal has the powers, discretions and duties of the chief executive in respect of the matter, and is subject to the limitations imposed on the chief executive.[3] The purpose of the review is to produce the correct and preferable decision.[4]
[2] QCAT Act, section 19(a).
[3] Section 21(2).
[4] QCAT Act, section 20(1).
OLGR’s written submissions suggest an issue about whether Mr Hyde is a valid objector. However, at hearing OLGR conceded, although submitting that Mr Hyde’s objection has a commercial flavour to it, it is a mixture of valid and invalid objection.
Mr Hyde submits that the decision made by OLGR should be set aside. The issues he raises include alleged non-compliance of the DBS applicant with the Act and relevant OLGR guidelines in relation to the community impact statement (CIS) submitted by it; the matters OLGR was required to consider in making its decision; the alleged non-observance of the objects of the Act in granting the application because of the potential for impulse buying of alcohol from the DBS because of its co-location with a service station; and bias of a Senior Licensing Officer, a Mr Smith, in his community impact assessment document, which Mr Hyde argues has intruded into the decision-making process. Mr Hyde also argues that the conditions imposed on the grant of the authority are of not useful.
[10] OLGR submits that all necessary requirements under the Act were met and that the decision should be confirmed. Glenhaven supports and relies upon the submissions made by OLGR.
Background
The proposed DBS
[11] The application for the DBS approval was made on 20 July 2010.[5] The written application was accompanied by a site assessment form[6] and a CIS apparently prepared on behalf of the applicant which contains information under the headings of nature and type of facilities; positive and negative impacts; business/sensitive facilities; Noise/Traffic; Safety Issues and Impact or Change to Character/Identity.[7] A plan, a map and photographs were also attached to the application.[8]
[5] File documents 1-4.
[6] File documents 5-7.
[7] File documents 8-9.
[8] File documents 10-13.
[12] The CIS suggests that the DBS and the retail development generally will likely increase traffic in the area, but points out that as it is located on the Cunningham Highway, nearby residents are already experiencing extensive noise and contends that any increase would be negligible. It also contends that as it is a takeaway outlet and there will be no consumption of alcohol on the premises, it is unlikely that there will be any effect on public disorder or vandalism if the approval is granted. The applicant’s experience as a hotelier is suggested as minimising the possibility of such negative impacts. The CIS contends that there will be no change to the character of the local community as a result of the DBS as it is a small expansion to an existing retail facility.
[13] The proposed DBS is to be located in a newly constructed retail strip development.[9] It is a redevelopment of an existing service station by the owners and operators of that service station, Mr Sven Koremans and Ms Sharon Koremans.[10] It is intended that the DBS will occupy 119m2, the service station 201m2, and the other tenant, a bait and tackle shop 262m2. The service station includes a convenience store and male and female toilets. There are 19 parking bays.[11]
[9] File documents 8.
[10] File documents 8.
[11] File documents 8.
[14] It is proposed that the DBS will provide takeaway sales only.[12] The DBS applicant contended that the bottle shop will create a new service for existing customers of the service station and for the convenience of other residents in the West Warwick area, as well as residents and visitors travelling west of Warwick.[13]
[12] File documents 8.
[13] File documents 8.
[15] According to the local authority for the area, Warwick’s population increased over 21% over the 13 years from 1996 to 2009.[14] The south western precinct of the town, which is known as West Warwick has been the site of the majority of the new residential development over the last 18 years.[15] From inspection of a map identifying the location of the proposed DBS,[16] and the local authority’s advice regarding the streets involved in the new developments,[17] it is apparent that many of the developments identified are in the vicinity of the proposed DBS.[18]
[14]File documents 199.
[15]File documents 199.
[16]File documents 52.
[17]File documents 199.
[18]File documents 52 left-hand of map, Bisley St at L15-M13; Tooth St at J15-K12; Lyndhurst Lane at B17-E1; Cullen St at H14-L14; and Glen Rd at A15-K12.
[16] Access to the proposed site is from Douglas Street, rather than the street it fronts, Wood Street. Wood Street is part of the Cunningham Highway.[19]
[19]File documents 52.
[17] The proposed DBS was advertised as required. There are no sensitive facilities identified within 200 metres of the site.[20]
[20]File documents 293.
[18] A Senior Licensing Officer, Mr Smith prepared a Community Impact Assessment[21] and an Acting Senior Compliance Officer, Ms Gregory prepared a risk assessment.[22] Neither Mr Smith nor Ms Gregory identified matters of concern regarding impact on the local amenity.
[21]File documents 293-297.
[22]File documents 214-223.
Comments and objections about the application
[19] The local authority advised OLGR that it had no objections to the application if its operation is in accordance with a Decision Notice issued by the local authority, which included that floor area be 119m2 and operating hours of 10am to 9pm.[23] The Queensland Police Service had no objections.[24]
[23]File documents 120 and Decision Notice 40-51.
[24]File documents 35.
[20] Road Safety and System Management advised that although it was a high risk application according to its guidelines, it did not oppose the application provided that, if approved, a restriction was placed on advertising the sale of liquor within the service station tarmac area.[25] The local Member of Parliament expressed the view that Warwick was adequately serviced with take-away liquor outlets and noted that there was one in the area.[26]
[25]File documents 166-167.
[26]File documents 34.
[21] Two letters of objection from members of the public were received by OLGR.
[22] One objector was a local resident who considers the business is unsuitable in the area and could be seen to encourage drinking and driving. She also referred to reasons including that many nearby residents are elderly; two residential indigenous homes are adjacent to the building; a church is ‘next’ along the highway; a public park and a school are nearby, as are an aged care facility and a retirement village under construction; and another bottle shop operates a block away.
[23] The second letter of objection was submitted on behalf of Mr and Mrs Hyde, the operators of the Palace Hotel. The grounds for objection are said to be twofold. Firstly, that undue offence, annoyance and disturbance or inconvenience will likely be caused to persons who reside or work or do business in the locality, or to persons travelling to or from an existing or proposed place of public worship, hospital or school. Secondly, that the amenity, quiet or good order of the locality concerned would be lessened. The objection raises many of the same issues argued at hearing. The objection attached a petition of objection containing 174 signatures.
[24] OLGR submits that the objection has a commercial flavour to it because it also raises concerns about an over-supply of takeaway liquor facilities resulting in an undesirable level of competition and significantly affecting the business of the objector’s hotel and/or leading to discount drink promotions leading to over-consumption of liquor which may lessen amenity in the area and may affect the economic viability of those businesses already operating.[27]
[27] File documents 92-93.
[25] An objections conference was held.[28] At least some persons who signed the petition were notified of the conference. Subsequently two of them contacted OLGR to advise that they had not put their name to the petition and had no objection to the DBS going ahead.[29] The signatories of the petition were analysed by Glenhaven. It pointed out that of the 174 signatories, 34 do not reside in Warwick and two of those do not reside in Australia. A further 53 nominate an address outside of West Warwick. Of the remaining 87, two give only post office box addresses and so their residential proximity to the proposed DBS is unknown.[30]
[28] File documents 281-282.
[29] File documents 225.
[30] File documents 181-182.
[26] Glenhaven also pointed out that 10 of the 18 pages of the petition contain an address for the DBS premises which is incorrect.[31] On this basis, it questioned the validity of the objection and petition.[32]
[31] File documents 174.
[32] File documents 182.
The legislative framework
[27] The main purpose of the Act includes regulating the liquor industry in a way compatible with minimising harm, and potential for harm, from alcohol abuse or misuse; minimising adverse effects on the health and safety of members of the public; and minimising adverse effects on the amenity of the community.[33] It also includes facilitating and regulating the optimum development of the tourist, liquor and hospitality industries in Queensland having regard to the welfare, needs and interests of the community and the economic implications of change.[34]
[33] Section 3(a).
[34] Section 3(b).
[28] Under the Act, section 60 sets out those matters which a commercial hotel licence authorises. A DBS is defined as premises approved by the chief executive as mentioned in section 60(1)(d).[35]
[35] Section 4.
[29] Part 5 of the Act sets out the requirements for applications. Section 105 provides, among other things, that applications must specify or be accompanied by the particulars prescribed by regulation. The chief executive may require an applicant to give further information or a document that is reasonably necessary to decide the application and is reasonable for the applicant to provide.[36]
[36] Section 105(2) and (3).
[30] Section 121 sets out the matters to which the chief executive must have regard in deciding whether to grant an application. If the application is an application to which section 116 applies, the matters to be considered include those matters mentioned in section 116(6) and the public interest as far as it relates to the main purpose of the Act set out in section 3(a) or the impact on the amenity of the community. Other relevant matters under section 121 also include objections to the application; comments from the local authority; the impact on the amenity of the community; and any relevant conditions imposed by the local authority on a development approval.
[31] Amenity of a community is defined in section 4 of the Act. It includes the atmosphere, ambience and character of the community and the comfort or enjoyment derived from the community by the persons who live, work or visit it.
[32] The chief executive may impose conditions on licenses, among other reasons, to ensure appropriate compliance with the Act; to minimise harm caused by alcohol abuse and associated violence; or to minimise alcohol- related disturbances, or public disorder, in a locality.[37]
[37] Sections 107C, 111.
[33] Under section 118(1), an application of approval of a DBS must be advertised as provided.
[34] Objections are provided for in section 119. Any member of the public may object if notice of an application is required to be published by section 118, before the last specified day for filing of objections. An objection may be made individually or by petition. The possible grounds for objection are specified to include the likelihood of undue offence or disturbance to persons who reside work or do business in the locality and the likelihood of an adverse effect on the amenity of the community.
[35] In relation to objection by petition, section 120 of the Act sets out requirements. An objection by petition will be ineffective and may be disregarded unless, each sheet has an identical heading clearly stating the subject matter of the petition; each signatory adds details of their connection with the locality; and each sheet states the full name of the petition’s sponsor.
[36] Section 7 of the Liquor Regulation 2002 (the Regulation) makes provision about circumstances in which the chief executive may approve premises as a DBS. It is not suggested by Mr Hyde that these requirements are not met, and nor do I consider that there is any issue in relation to these matters.
[37] Guidelines can be issued under section 42A of the Act by the chief executive. Guidelines are not legislation. They set out, in effect, the policy of the chief executive in relation to the matters they cover. Lawful ministerial policy will generally be followed in merits review proceedings unless there are cogent reasons to depart from it.[38] A more guarded approach has been taken to departmental guidelines. However, if the policy is reasonable and sound, consistency in decision-making makes it desirable that it be followed provided the merits of the matter are considered,[39] and provided that any policy requirements are in accordance with the relevant legislation.[40] If policy is defective, the decision may be reviewed without regard to the policy.[41]
[38]Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, per President Brennan J; Australian Unity Health Ltd v Private Health Insurance Administration Council [2000] FCA 769 [42-45] (Goldberg J); Perder Investments Pty Ltd v Lightowler (1990) 101 ALR 151 (Spender J).
[39]Ruggeri and Secretary, Department of Social Security (1985) 8 ALD 338; Australian Unity Health Ltd v Private Health Insurance Administration Council [2000] FCA 769 [42-45] (Goldberg J); R v Queensland Fish Management Authority ex parte Hewitt Holdings Pty Ltd [1993] 2 Qd R 201 (Macrossan CJ, de Jersey J, Dowsett J).
[40]Bateman v Health Insurance Commission (1998) 54 ALD 408 (Madgwick J); Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, per President Brennan J.
[41]Ahern v DCT (1983) 50 ALR 177; Bateman v Health Insurance Commission (1998) 54 ALD 408, 418-419 (Madgwick J).
[38] Guideline 38 issued by OLGR is entitled ‘Community Impact Statement’. Guideline 38 had effect from 1 January 2009 when amendments to the Act refocused section 116 from an examination of public interest to an examination of community impact. The guideline states that it provides applicants with the information needed to complete a CIS.
[39] Among other things, it explains the types of CIS and the circumstances in which a standard or full CIS is, or is likely, to be required and what each type of CIS is required to address. Guideline 38 provides for every DBS applicant to submit at least a standard CIS. It also sets out that the Chief Executive may request a full CIS as a result of the chief executive’s concerns in relation to, amongst other matters, the location of the proposed premises, or the application is the first of its kind in the locality.
[40] Guideline 37 is entitled ‘Sale of liquor from Premises that also sell petrol’. It applies to applications for sale of liquor from the same complex or an adjoining complex as the sale of petrol. Although the guideline confirms that each application must fundamentally be considered on its own merits, the Guideline indicates that the chief executive is likely to refuse, what it refers to as Category 1 applications, in circumstances including when the travelling public are the major customers and there are other liquor outlets in the locality, or the premises is a dedicated truck stop.
[41] Guideline 37 also nominates applications which require close scrutiny and may be referred to Queensland Transport for consultation including where petrol and liquor outlets are in the same or adjoining buildings or the petrol and liquor outlets have direct line of sight to each other or are otherwise linked. The guideline suggests that the chief executive may choose to consult Queensland Transport for comment or determine that the imposition of conditions would sufficiently address concerns, having regard to matters including restricting advertising on the tarmac and screening the entrance to the liquor outlet from view of service station patrons.
Issues raised about the requirements of the Act and the CIS
The requirements of sections 116 and 121
[42] As I understand Mr Hyde’s submissions, he contends that section 116 applies, and that therefore, section 121(a) applies, to the application. Further, he submits that a purposive construction should be adopted regarding the requirements set out in section 121. He submits that when section 116 was amended in 2010, and the sub-sections were renumbered that section 116(6) became section 116(8), but that it appears through oversight that section 121(a)(i) was not amended to reflect the change in numbering. Therefore, he submits, it was mandatory for the DBS applicant to submit a CIS addressing the criteria in section 116(8).
[43] Mr Hyde says that the CIS therefore fell short of meeting the legislative requirements, and at no time did OLGR state that a CIS was not required, and contends that if the chief executive had done so, he would have failed in his duties. Further, he contends that the chief executive should have exercised the discretion to require a full CIS under Guideline 38 because the application is the first of its kind in the locality and/or because of the location of the premises.
[44] OLGR submits that the construction of section 121 which Mr Hyde contends is incorrect having regard to the history of relevant amendments to the Act. In the current Act as set out in Reprint 10A, section 116(6) refers to the purpose of a CIS as helping in the assessment of the impact on the community having regard to the main purpose of the Act which is set out in section 3(a). Section 116(8) is unchanged between the versions. However, section 121(1)(a)(i) still refers to having regard to section 116(6), not 116(8).
[45] Further, OLGR submits that section 116 does not require a CIS in these circumstances although OLGR may require one. It also points out that Guideline 38 was introduced during the currency of Reprint 8I which introduced significant amendments to section 116 to the effect that the chief executive may require a CIS if he believes the amenity of the community would be significantly adversely affected if the application is granted. In earlier versions of the Act, section 116 had required that an applicant satisfy the chief executive that it was in the public interest for the application to be granted. Therefore, OLGR says it is not possible to read the reference in section 121(a)(i) in Reprint 9G as a reference to section 116(6) as 116(8).
[46] As discussed, section 121 sets out the matters which must be considered by the chief executive, and therefore the tribunal when it stands in the shoes of the chief executive in determining a review application, in deciding whether to grant an application. In Reprint 9G of the Act, section 121(a) which applies to applications to which 116 applies, includes the matters mentioned in section 116(6) as matters to which the chief executive must have regard. However, there was no section 116(6) in the Act at that time.
[47] Section 116(1) provides that certain specified applications must be accompanied by a CIS. Those specified applications include an application for a licence, other than a community other licence; and an application under section 111 for a variation of a licence. Under section 111(1), a licensee may apply to vary a licence by amending or revoking a condition. An application for a DBS is not an application for a license or for a variation, rather it is an application for an approval or authorisation. Therefore, section 116(1) does not operate to require a CIS in the case of the proposed DBS.
[48] Subsections 116(2) and(3) must be read together. By virtue of them, the chief executive may require a CIS when a ‘community other’ license is sought or an application is made for a ‘commercial public event permit’ or ‘community liquor permit’. Again, this does not apply to the application for a DBS authority.
[49] If a CIS is required, section 116(4) provides discretion for the chief executive not to require a CIS if satisfied it is not necessary, for reasons including that the purpose of the CIS has been or can be achieved through other means, or because of other special circumstances. The matters to be addressed in a CIS are set out in section 116(8). Section 116(9) requires an applicant to have regard to relevant guidelines issued in accordance with section 42A of the Act.
[50] The legislative history does not support the construction of section 121 contended for by Mr Hyde. There have been amendments made to the Act since Reprint 9G and Parliament has not made changes reflecting the construction advanced by Mr Hyde. On the contrary, section 121(1)(a) still refers to section 116(6), not 116(8). Further, section 116(6) as currently in effect, sets out the purpose of a CIS, namely to assist with the assessment of the impact on the community of the proposal contained in an application having regard to the objects of the Act.
[51] However, it is not necessary for me to decide the construction point argued by Mr Hyde regarding the matters to be considered in accordance with 121(a) of the Act. This is because section 121(a) only applies to applications to which section 116 applies. There is not a mandatory requirement in section 116 for a CIS to accompany all applications. There must be a CIS in the circumstances specified. None of these apply in this proceeding. Therefore, section 116 is not applicable to the DBS application and nor is section 121(a).
The Guidelines
[52] As discussed earlier, under section 42A, the chief executive may issue guidelines. Mr Hyde makes submissions regarding Guidelines 37 and 38.
Guideline 38
[53] Guideline 38 provides for every DBS applicant to submit at least a standard CIS. Guideline 38 is expressed to be issued following the amendments to the Act which commenced on 1 January 2009 which refocussed section 116 from an examination of public interest to community impact. The amendments referred to were contained in Reprint 8I and are in similar terms in all relevant aspects to those in Reprint 9G.
[54] Mr Hyde submits that the given the location of the DBS, on a national highway, namely the Cunningham Highway, and that the application is the first application for a DBS in a service station that the OLGR should have required a full CIS. He argues that the CIS provided by the DBS applicant fell short of what was required because of its generality and lack of particulars.
[55] OLGR submits that in addition to the original CIS lodged,[42] the DBS applicant made further submissions about community impact[43] and this was in compliance with Guideline 38. OLGR also assessed the community impact and concluded that granting of the application would not result in adverse impact to the local community.[44] As discussed earlier, the local authority provided information about population and demographics.
[42] File documents 8-9.
[43] File documents 174-199.
[44] File documents 293- 297.
[56] In my view, having regard to section 116, the chief executive, through Guideline 38, purports to impose requirements in addition to those provided for in the Act, by requiring a CIS in circumstances when the Act does not require it. A CIS may often be useful in assisting in the decision-making process having regard to the matters to be considered by OLGR under section 121, which include under section 121(f), the impact on the amenity of the community.
[57] Of course, although a CIS is not mandatory with every application under the Act, under section 105(2), it is open to the chief executive to request a CIS in an appropriate case. It did not request one on the basis of the application in this case. Rather, the CIS appears to have been provided in response to a purported requirement referred to in the application form completed by Glenhaven.[45]
[45] File documents 3, section 15.
[58] However, it is apparent that the policy as set out in Guideline 38 was not slavishly applied by OLGR which did not request a full CIS in this case. As the Guideline seeks to impose conditions which are inconsistent with the legislation in that they are additional to what it requires without regard to the merits of the particular matter, I consider that it would be inappropriate for me to apply it in deciding this review.
[59] In summary, a full CIS was not required by the Act and was not requested under section 105.
Guideline 37
[60] Guideline 37 was issued on 28 September 2001. At that time, Reprint 6 contained the Act as effective. The then provisions of the Act were substantially different. Section 116 specifically applied to applications for an approval under section 59(1)(d) for a DBS. Under that section, an applicant for a DBS approval was required to satisfy the chief executive that it was in the public interest for the application to be granted. The Liquor Regulation 2002 had not been enacted. When it came into force, the regulation set out circumstances in which the chief executive may grant approval for a DBS.
[61] Guideline 37 states that applications must be considered on their own merits, in accordance with the guideline. It does not require a particular outcome on any particular type of application. It does not appear to me to be inconsistent with the Act or the Regulation. The main purpose of the Act includes minimisation of harm and the potential for harm as a result of alcohol misuse and abuse, and minimising adverse effects on the safety of members of the public. Guideline 37 appears to be directed at minimisation of the potential for harm from the consumption of alcohol in circumstances when the patrons purchasing alcohol may be at risk of drink-driving and impulse buying of alcohol. Therefore, it appears consistent with the legislation. For reasons of consistency in decision-making and because it appears to be soundly based policy having regard to the provisions of the Act, I consider that Guideline 37 should be applied by the tribunal in determining the application.
[62] Mr Hyde contends that arguably the premises fall within Category 1 premises which the chief executive is likely to refuse under Guideline 37, because the DBS applicant identifies in its CIS that the DBS may be to the convenience to visitors to Warwick travelling west to Goondiwindi or to public water storage facilities west of Warwick. He argues that there is no evidence that the travelling public are not the major customers.
[63] OLGR points to the submissions and comments of the DBS applicant that the travelling public are not the major customers,[46] and to information supplied by Mr Koremans who has operated the service station for some years, both prior to its rebuilding into the current complex and since, to the effect that the business is geared around local trade. Estimates of 90% local trade during the week and 75% on weekends were provided.
[46] File documents 177, 215, 285.
[64] Mr Hyde argues that the information from the DBS applicant and Mr Koremans is unreliable because of the vested self-interest of the parties. Mr Hyde suggests that a study by an independent traffic expert should be conducted and submitted by the DBS applicant. Alternatively, he submitted that OLGR could have sampled the customers of the service station so that some independent evidence was available.
[65] Mr Koremans has operated the business for some years. He is in a good position to know its custom. There is nothing in the evidence to suggest that he will be advantaged by having a DBS in the complex, as opposed to any other type of retail outlet. Therefore, I do not accept the argument that his comments are motivated by self-interest. I accept the information he has provided about the makeup of his clientele at the service station. This can only be an indication of the type of clientele that may ultimately patronise the proposed DBS. Accordingly, I do not accept that the travelling public are the likely major customers.
[66] Alternatively, My Hyde argues that the premises should be considered a category 2 premises under Guideline 37 because petrol and liquor outlets are in the same or adjoining buildings and that careful consideration must therefore be given to the application and conditions imposed which sufficiently address concerns. Road Safety and System Management Section of the Queensland Transport made comments. As discussed earlier, it had no concerns about the application provided a restriction was placed on advertising the sale of liquor within the service station tarmac.Also, OLGR in its decision imposed conditions restricting advertising and screening of the entrance to the proposed DBS.
The objects of the Act: minimising harm and the risk of impulse buying
[67] The main purposes of the Act include minimising harm and the potential for harm from alcohol abuse and misuse and associated violence; minimising adverse affects on the health or safety of members of the public; and minimising adverse effects on the amenity of the community.[47]
[47] Section 3(a).
[68] Mr Hyde submits that having regard to the objects of the Act, any CIS that fails to properly address the effect of the licence on the amenity of the community must be rejected by the chief executive if the chief executive is to carry out the purpose of the Act when assessing the application. He further submits that it follows that the OLGR should have rejected the application and at the very least required Glenhaven to submit a full CIS addressing in detail the likely impact of the DBS on the local amenity.
[69] He also raises the risk of impulse buying of alcohol created by the presence of a bottle shop in the service station complex. He contends that this risk cannot be overcome by conditions essentially because the potential for impulse buying will be sparked when a person enters or drives into the complex and must first see the DBC as they enter the complex. He submits that therefore, the application must be rejected. He relies upon the comments of Road Safety and System Management that the major concern of Transport and Main Roads is that a person on a journey is not presented with the option of an impulse purchase.[48]
[48] File documents 166.
[70] OLGR notes that there are no objections on this basis to the application by the QPS, the local authority, Main Roads, and this issue is not raised by the other objector. Further, it says, alcohol is in any event readily available from other licensed premises and from the existing DBS which is close by.
[71] It says the issue was considered by OLGR and refers to the Community Impact Assessment prepared by a Senior Licensing Officer, who considered that the risk of purchasing liquor from this proposed outlet to consume it in a vehicle was only slightly greater than it was in respect of any other takeaway liquor outlet a traveller might pass while travelling through Warwick.[49] In respect of locals who may be travelling out of Warwick to a local dam, he considered the argument even less compelling.
[49] File documents, 293-297, especially at 296-297.
[72] Logically, the risk of impulse buying of alcohol will be present in any situation when a driver sees licensed premises, whether at a DBS or a hotel bottleshop. There are numerous licensed premises in Warwick, some of which already have a DBS approval.[50]
[50] File documents 315-322.
[73] It appears that the issue raised about impulse buying in the Road Safety and System Management correspondence was expected by that agency to be addressed by the restrictions it suggested about advertising within the service station tarmac area. That agency might be expected to have some expertise in dealing with this issue.
[74] Mr Hyde’s concern revolves to some extent around travellers who may patronise the service station who may be at risk of impulse buying of alcohol.
[75] Why travellers who are prone to impulse buying might be more likely to impulse buy from the proposed DBS rather than any other licensed premises they pass on their way through Warwick is not disclosed. Why they would be more likely to patronise this service station is also not obvious. Travellers might be expected to want to ensure that they have refuelled and purchased what they require before they commence an onwards journey.
[76] It seems Mr Koremans’ business is on the way out of town. It seems more likely to me that although local persons/customers would know it was there, it is reasonable to consider that travellers, who by their nature may not know Warwick well or at all or the location of its service stations or liquor outlets, who need to refuel and obtain other supplies are likely to do so as they pass through the commercial area of Warwick, rather than rely on there being a service station complex closer to the edge of town. If they desire, to purchase alcohol, it is likely they will stop at a licensed premises also as they travel through Warwick. If they have not elected to do so in town, it then seems implausible that they will be more tempted to impulse buy as they pass through the more outer precincts of the town.
[77] In respect of local customers and the risk of impulse buying, again there seems to be no logical reason why they might be more inclined to impulse buy at this particular complex than at any other licensed premises they pass, although it may be convenient to some persons to refuel and purchase alcohol supplies at the one complex.
[78] The risk of drink-driving is, of course, of great concern. However, it was conceded by Mr Hyde that the service station premises are not a truck stop. Further, there is no evidence to suggest that persons who purchase alcohol from a DBS which does not cater for on-site consumption of alcohol are more likely to drink-drive than persons who purchase it from other outlets.
Alleged Bias of Mr Smith
[79] Mr Hyde argues bias by Mr Smith in his report has infected the decision-making process of the OLGR. This is an argument about the decision-making process.
[80] Given that the tribunal’s review of the decision is conducted by way of fresh hearing on the merits of the application, any possible perceived deficiencies in process or procedure by OLGR in its decision-making process is not relevant to my deliberations. I have conducted a fresh hearing and reached my own conclusions based on the evidence as a whole.
Decision
[81] In considering the submissions of Mr Hyde and OLGR, I have already considered many matters relevant to the decision I must make about whether the correct and preferable decision is to grant approval or not for the DBS.
[82] In making the decision, I must have regard to the relevant matters set out in the Act and the Regulation. The application was advertised as required. Relevant matters set out in section 121 are contained in subsections 121(b) objections to the application; (c) comments from the local authority; (f) the impact on the community; and (h) any relevant conditions imposed on the development approval under the Sustainable Planning Act 2009. Issues have not been raised regarding the requirements of section 7 of the Regulation and nor do I discern any, and therefore, I do not propose to set out those requirements or consider them further in these reasons for decision.
[83] In relation to the petition, it contains some irregularities identified earlier. OLGR submitted that the tribunal should consider it in context, as it did in making its decision. Although under the Act, it may be disregarded, I consider that it is appropriate to consider it, but having regard to the irregularities it contains and the fact that a significant portion of the signatories do not reside in West Warwick, and that several of those who purportedly signed it, deny having done so.The objections to the application have been discussed at length.
[84] I conclude that the objections do not raise any issue which would warrant refusal of the application if all necessary requirements are satisfied.
[85] The comments from the local authority have been discussed. It had no objections to the application if its operation was in accordance with its Decision Notice as discussed earlier. The conditions it referred to were imposed under the forerunner to the Sustainable Planning Act 2009, namely the Integrated Planning Act 1997. If the approval is granted, it should be subject to those requirements, namely that the floor area be 119m2 and operating hours of 10am to 9pm.
[86] Regarding the amenity of the community concerned, I am satisfied that the impact will be negligible. In reaching this conclusion, I have had regard to the matters identified in Guideline 37. The proposed DBS is in an existing retail outlet on a busy road. There is some risk of impulse-buying, but I do not consider for the reasons already discussed that this is significantly greater than the risk in relation to any other hotel or DBS. The risk of drink-driving is also not identifiably greater than in respect of other DBS, given that consumption of alcohol on the premises is not proposed, it is not a dedicated truck stop, and the travelling public are not the major likely customers of the proposed DBS.
[87] Under section 107C and 111, the tribunal has wide discretion to impose conditions. Again, I have had regard to the issues identified in Guideline 37 regarding conditions. I also note that Queensland Transport has been consulted and expressed views about conditions to be imposed.
[88] Guideline 37 specifies that the chief executive in considering the conditions that may be adequate will have regard to restricting advertising on the service station tarmac; screening the entrance to the liquor outlet from the view of service station patrons or ensuring demarcation between the two businesses.
[89] Mr Hyde suggests that the conditions imposed do not sufficiently address concerns because town planning conditions imposed result in vehicles being only able to enter the premises from Douglas Street, not the Cunningham Highway. As a result, the first premises visible to vehicles entering the complex is the DBS site. Therefore, he contends that the impermeable barrier required by the licence conditions is futile. He also argues that prohibiting advertising within 150 metres is useless. He suggests that the only useful advertising condition would be to ban all advertising of the DBS on the national highway to avoid impulse purchases, although such a condition still cannot address the potential for impulse purchasing created by the presence of a DBS in a service station complex.
[90] OLGR argues that the conditions are appropriate and adequate. It submits that the 1.8 metre height for the barrier is about the height of a person and is therefore adequate to block the line of visibility and arises from Guideline 37 directly. Further the last two conditions it submits arose from the objections conference.[51]
[51] File documents 281-282.
[91] The DBS in this case, is not proposed to be in the same building as the service station. It is in a separate building but on the same site. There is also a bait and tackle shop in the premises next door to the proposed DBS. The condition regarding the barrier arises from Guideline 37 directly. Liquor is not to be consumed on the premises. As discussed earlier, I do not accept Mr Hyde’s broader submissions regarding impulse-buying.
[92] I consider that the correct and preferable decision is to grant the approval for the DBS upon those conditions imposed by OLGR when it made its decision.
[93] The decision is confirmed.
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