Magin v Chief Executive, Office of Liquor and Gaming Regulation
[2012] QCAT 646
| CITATION: | Magin v Chief Executive, Office of Liquor and Gaming Regulation and Anor [2012] QCAT 646 |
| PARTIES: | Donald Earle Magin (Applicant) |
| v | |
| Chief Executive, Office of Liquor and Gaming Regulation (First Respondent) Starwood Capital Group Pty Ltd (Second Respondent) |
| APPLICATION NUMBER: | GAR384-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 22 August 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | P Hanly, Member |
| DELIVERED ON: | 14 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | That the decision of the Chief Executive, Office of Liquor and Gaming Regulation dated 27 October 2011 is confirmed. |
| CATCHWORDS: | Liquor licensing – commercial other (subsidiary on-premises) entertainment licence – where objections relating to venue densification and patron saturation; alleged non-compliance with legislative requirements; adverse social impacts and residential amenity issues Liquor Act 1992, s 121 Staddon & Ors v Chief Executive Department of Employment, Economic Development and Innovation and Anor [2011] QCAT 258 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Donald Earle Magin self-represented |
| RESPONDENT: | Chief Executive, Office of Liquor and Gaming Regulation represented by Ms J Droguet Starwood Capital Group Pty Ltd – No appearance |
REASONS FOR DECISION
Mr Magin has sought a review of the decision to grant a Commercial Other (Subsidiary on-premises) entertainment licence to Starwood Capital Group Pty Ltd (Starwood). The decision was made on 27 October 2011 by the chief executive of the Office of Liquor and Gaming Regulation (OLGR). The licence relates to premises known as “Entertainment Venue” located at level 1, 21 Orchid Avenue Surfers Paradise.
Mr Magin objected to the proceeding in which the decision was made and therefore has standing to seek a review in the Tribunal.[1]
[1] Section 30(1)(a)(i) and (b) Liquor Act 1992.
The Tribunal’s jurisdiction is conferred under the Liquor Act 1992 (Act)[2] and is within its review jurisdiction[3]
[2] Section 21(1)(a).
[3] Section 17(1) Queensland Civil and Administrative Tribunal Act 2009.
Under s 19 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) the Tribunal in exercising its review jurisdiction must decide the application in accordance with the QCAT Act and the enabling Act under which the decision was made. The Tribunal may perform the functions conferred on it by either Act and has all the powers, duties and limitations of the original decision maker.[4]
[4] Section 21(3) Liquor Act 1992.
The purpose of the review is to produce the correct and preferable decision.[5] The Tribunal must hear and decide the review by way of a fresh hearing on the merits.[6] This is restricted to a reconsideration of the evidence before the decision maker at the time of the decision[7] unless leave has been granted for new evidence to be presented.[8]
[5] Section 20(1) QCAT Act.
[6] Section 20(2) QCAT Act.
[7] Section 33(1) Liquor Act 1992.
[8] Section 34.
At the commencement of the hearing Mr Magin confirmed that he was seeking to review only the granting of the Commercial Other (Subsidiary On-Premises) Licence and not the Extended Trading Hours Approval. As a result, s 121(1)(d) and s 121(1)(g) of the Act are not required to be considered by the Tribunal.
Mr Magin and OLGR filed further material which was not before the original decision maker. Both parties had the opportunity to respond to this material prior to the commencement of the hearing. At the hearing, leave was given for only that material relating to the Drink Safe Precinct (DSP) trial – nine and twelve month snapshots, and the Attorney General’s media release dated 24 July 2012 – to be included in the evidence upon which the review was to be decided.
Mr Magin says that the decision to grant the licence should be overturned because the chief executive did not have regard to the adverse social impacts and residential amenity issues which will flow from it. He points out that the area in which the premises are located is already venue densified and patron saturated, and the granting of this licence with its attendant increase in patrons will lead to an increase in alcohol related violence and anti-social behaviour.
In relation to the Drink Safe Precinct (DSP) trial, Mr Magin urged the Tribunal to treat the statistics with caution, because a comprehensive review of the trial’s effectiveness has not been carried out, and will not be carried out until the trial has ended.
Mr Magin further says that the development approval should not have been granted to Starwood, as the application for such approval was non-compliant and therefore flawed. He goes in to significant detail about this issue.[9]
[9] Paragraphs 3 & 25 Outline of Submission by Applicant.
Mr Magin’s material is voluminous. Some of it is not relevant to the issues to be decided and has been disregarded.
Mr Magin states that the granting of the licence has had an impact on the amenity of the community. He says there is unsafe, threatening and violent behaviour exhibited by some persons who patronise venues within the Surfers Entertainment Precinct, which is too small and confined for the numbers present there in the night and early morning. He has observed that patrons have to walk on the road, exposing themselves to risk of accident.
Mr Magin asserts that limited taxi numbers do not promote safe dispersal of patrons, and an inability for taxis to stop on Orchid Avenue further exacerbates the problem.[10] Furthermore he says the relocation of the taxi rank as a four car rank to the northern end of Orchid Avenue has not been helpful.[11] He also notes that lighting is poor and that this adds to the generally unsafe environment.[12]
[10] Paragraphs 26(d) & 36(c).
[11] Paragraph 36(d).
[12] Paragraph 36(b).
Mr Magin points out that there are CCTVs everywhere and it is not possible to install any more. He considers that this has not been and will not be in the future an effective deterrent to violent behaviour.
Mr Magin notes a lack of public toilets which leads to episodes of public urination, and he says that this is a further diminution of amenity.[13]
[13] Paragraph 36(a).
Mr Magin states that because of the densification of venues and patron saturation, public safety cannot be guaranteed. He questioned whether the Gold Coast City Council was accepting its responsibilities, and concluded that the decisions to approve the development application and then to grant the licence were “wrong, wrong, wrong”.
In relation to section 121(1)(a)(ii)(A) of the Act the first respondent submits that in considering matters of public interest as far as they relate to the main purpose of the Act, Starwood was found to be fit and proper to hold a licence and there was no evidence that reasonably suggests that the licensee would operate the venue outside the bounds of the harm minimisation objectives of the Act.
As to section 121(1)(a)(ii)(B) of the Act, public interest as far as it relates to amenity of the community, the first respondent submits that granting the application would not result in undue or unreasonable adverse impact on the amenity of the community.
The first respondent further submits that although the Senior Licensing Officer who prepared a report on community impacts expressed a view that the granting of the licence was likely to impact the community, he further stated that the impacts could be managed and prevented from becoming undue or unreasonable due to various factors outlined at page 423 of the Statement of Reasons, under Community Impact Assessment.
The first respondent further submits that although the DSP program was not determinative, there was evidence to suggest that the program had reduced the incidence of reported offences in Surfers Paradise.
In relation to the Council’s response, and having regard to section 121(1)(c) of the Act, the first respondent points out that it had had regard to that response, noting in particular that Council had not objected but had raised amenity issues and had proposed a trial period for the extended trading hours (in respect of which latter point Mr Magin has now confirmed he is not seeking a review).
The first respondent considered on balance all matters relating to community impact[14], and submits that no undue or unreasonable adverse impact on the amenity would result from the decision to grant the licence and approve extended trading hours.
[14] Paragraph 26(a) Submissions of First Respondent received 27.07.2012.
In making such a determination the first respondent was persuaded by the extension of the DSP program; increased funding for a greater police presence for Surfers Paradise; and the acceptance by Starwood of restrictive licence conditions which would assist Starwood to comply with the Act and minimise alcohol related harm.[15]
[15] Paragraph 26(b) & (c).
The first respondent submits that there are sufficient powers under the Act to take disciplinary action for non-compliance or in the event that the operation of the venue is attributed to causing alcohol related incidents or anti-social behaviour in Surfers Paradise.[16]
[16] Paragraph 26(d).
The impact on the amenity of the community was further considered (under s 121(1)(f) of the Act) in light of the objectors’ material, commentary from regulatory bodies and information in relation to the DSP program initiatives and it was submitted that the impact on the amenity could be minimised, particularly given the conditions on the licence in relation to security and responsible drinking practices as outlined in the Risk Assessment Management Plan (RAMP).
The issue of amenity has been considered in Staddon & Ors v Chief Executive Department of Employment, Economic Development and Innovation and Anor [2011] QCAT 258 which concerned a review of a decision to grant a commercial hotel licence. In its reasons for decision, the Tribunal made the following comments at paragraph 31:
“The main purpose of the Act is to regulate the liquor industry, and areas in the vicinity of licensed premises, in a way that is compatible with minimising harm and the potential for harm, from alcohol abuse and misuse and associated violence and minimising adverse effects on the health and safety of members of the public and minimising adverse effects on the amenity of the community.
The decision making process of both the Chief Executive and the tribunal starts from the proposition that a community of this size is entitled to access a premises having a general licence which is within the locality. The presumption is in favour of, rather than against, a licence unless the community impacts cannot be minimised. The Act does not contemplate that the grant of a licence will have no adverse impact on amenity as suggested by Ms Abby Staddon; it is a question of balance, with the amenity impacts to be minimised.”
Although the circumstances of the licence and the locality are different in the current matter, the principles discussed in Staddon apply to the granting of a licence generally. The Act does not contemplate that there will be no impact, but rather that any impact will be minimised.
In this matter the location of the provisionally licensed premises is in the Surfers Paradise entertainment precinct, which is designated as exempt from the moratorium on extended trading after midnight.[17] It is also within a Drink Safe Precinct.[18] Surfers Paradise is an international and domestic tourist destination[19] and there are a number of licensed premises already in the locality. It is zoned Multi-purpose Centre (MP3) – Suburban Centre.[20]
[17] Pages 463-465 Statement of Reasons.
[18] Pages 466-467 SOR.
[19] Page 25 SOR.
[20] Page 21 SOR.
There is no longer a requirement to consider the “public need” or the reasonable requirements of the public for the grant of an application, since amendments to the Act after 1 July 2001.
Mr Magin’s major argument relates to patron saturation and venue densification. These issues are relevant if they could affect amenity under the relevant sections of the Act.[21] In Townsville CBD Licensees Safety Association v Chief Executive, Liquor Licensing Division & Ors [2007] QCCTL4 (18 July 2007), the Commercial and Consumer Tribunal (CCT) considered the amenity of the Townsville Flinders Street entertainment precinct in relation to whether the locality had reached saturation or a crisis point. The CCT placed weight on the OLGR licensing officer’s assessment of some of the problems with the precinct in relation to anti-social behaviour, noting that:
“In Mr Reinhold’s opinion, ‘some of these incidents are traumatic and life threatening to the persons involved’ and must be regarded by the Chief Executive ‘in a very serious vein’. However ‘in the context of a busy late night entertainment precinct…(they) reflect an environment that is relatively “stable”’ although still potentially volatile. He was of the view that ‘the level of incidents was not so severe as to require what in effect was a moratorium on any new licensed premises.”[22]
[21] s121(1)(a)(i), 121(1)(a)(ii)(B) and 121(1)(f) Liquor Act 1992.
[22] Paragraph 89 of Reasons for Decision [2007] QCCTL4 (18 July 2007).
In the present matter there was significant police objection, but it is not necessary to have specific regard to that objection because Mr Magin has not sought a review of the Extended Trading Hours Approval. In any event, such an objection is not determinative in respect of such applications, and is only one of many factors required to be taken into consideration in determining an application.
The Tribunal has had regard to the community impact assessment. Strategies in relation to late night trading and the extension of the DSP program appear to be appropriate to manage the impacts of the subject licence. An increased police presence is an integral part of this management process, and the government has committed to maintaining that presence. Social and health factors such as public intoxication and alcohol related violence cannot be eliminated, but can be addressed with law enforcement measures.
In relation to public interest, it should be noted that the Act does not require that safety be guaranteed, as Mr Magin seems to expect. Not only would that be an impossible benchmark, it is also not articulated in the objects of the Act. Those objects balance the need to regulate the liquor industry, and the sale and supply of liquor in particular areas, in a way compatible with minimising harm caused by alcohol abuse and misuse with the need to facilitate and regulate the optimum development of the tourist, liquor and hospitality industries of the State having regard to the welfare, needs and interests of the community and the economic implications of change. The Tribunal is satisfied that those requirements have been properly considered and addressed.
The local government authority did not object to the granting of the licence, although it was supportive of the views expressed by the police in their objection. However, for the reasons expressed above, the Tribunal is satisfied that the police concerns have been ameliorated by the increased police presence and the extension of the DSP program.
Similarly, the Tribunal is satisfied that the impact on the amenity of the Surfers Paradise community will be minimal. By virtue of the fact that the licensed premises are within the Surfers Paradise Entertainment Precinct, and also a Drink Safe Precinct, with the attendant safeguards that these bring, the requirement to minimise any harmful effects has in the Tribunal’s view been met. Furthermore the conditions attached to the licence, and the ability of the OLGR to take disciplinary action for non-compliance with the Act provide additional safeguards.
Finally, the matters raised by Mr Magin in relation to errors in the original application are not supported by the material. The Tribunal is satisfied that the submission of the First Respondent accurately sets out the position in this regard.[23] In any event the Tribunal stands in the shoes of the decision maker and makes the decision afresh.
[23] Paragraph 40 Submissions of First Respondent received 27.07.2012.
The matters raised by Mr Magin in relation to the council’s decision making process are not within the Tribunal’s jurisdiction in this review.
On this basis, and having regard to all matters relevant to the issue as required under s 121 of the Act, the Tribunal is satisfied that the correct and preferable decision is to grant the Commercial Other (Subsidiary on-premises) entertainment licence to Starwood Capital Group Pty Ltd.
The decision of the Chief Executive, Office of Liquor and Gaming Regulation dated 27 October 2011 is confirmed.
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