Ocean Hotels Pty Ltd t/a Hides Hotel Cairns v Chief Executive, Office of Liquor and Gaming Regulation, Department of Employment, Economic Development and Innovation & Sun Tourism Pty Ltd

[2010] QCAT 378

CITATION: Ocean Hotels Pty Ltd t/a Hides Hotel Cairns v Chief Executive, Office of Liquor and Gaming Regulation, Department of Employment, Economic Development and Innovation & Sun Tourism Pty Ltd [2010] QCAT 378

PARTIES:	Ocean Hotels Pty Ltd trading as Hides Hotel Cairns
V
Chief Executive, Office of Liquor and Gaming Regulation, Department of Employment, Economic Development and Innovation &
Sun Tourism Pty Ltd

APPLICATION NUMBER:   GAR041-10

MATTER TYPE: General administrative review matters

HEARING DATE:     12 July 2010

HEARD AT:  Brisbane

DECISION OF: G Spender – Member
S Gardiner – Member

DELIVERED ON: 5 August 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The decision of the Chief Executive made on 18 December 2009 to vary the trading conditions of the licence held by the Second Respondent by increasing the noise limit on the dance floor from 103dB(c) to 113dB(c) is confirmed.

CATCHWORDS :  liquor - review of decision to vary noise conditions - Commercial Hotel licence - objection to variation by adjoining accommodation premises
Liquor Act 1992, sections 111 and 187
Liquor Regulation 2002, section 40

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr D Kingston, Chairman of Applicant company
FIRST RESPONDENT:	Mr D Robinson, Solicitor
SECOND RESPONDENT:	Mr A Herbert of Counsel, instructed by Ms J Wood of Commercial Licensing Specialists

REASONS FOR DECISION

Background

1. This is an application by Ocean Hotels Pty Ltd trading as Hides Hotel Cairns (“Hides Hotel”) seeking to review a decision of the Chief Executive of the Office of Liquor and Gaming Regulation (“OLGR”) made under the Liquor Act 1992 (“the Act”) on 18 December 2009 to vary conditions on the liquor licence held by Sun Tourism Pty Ltd trading as PJ O’Briens (“PJ O’Briens”) to allow for an increase in noise level on the dance floor from 103dB(c) to 113dB(c).

1. Hides Hotel is a heritage-listed building situated on the corner of Shields and Lake Streets in the Central Business District of Cairns. It consists of 105 motel-style rooms with 24-hour reception. PJ O’Briens occupies a lot underneath the northern side of Hides Hotel, and operates under the authority of a Commercial Hotel licence at shop 10, corner of Shields and Lake Streets, with trading hours of 10am to 3am Monday to Sunday. The licensed area includes a dining and beer garden area on the footpath adjacent to the premises.

1. On 4 November 2008 an application was made by PJ O’Briens to OLGR to vary condition 250 on its licence. Condition 250 restricted noise emanating from PJ O’Briens, including amplified and non amplified or patron noise, to 103dB(c) fast response when measured approximately 3 metres from the primary source of noise. The application was to increase allowable noise to 113dB(c).

1. Hides Hotel was the only statutory objector to the application made by PJ O’Briens and in his letter of objection dated 30 December 2008, Mr Moon, General Manager of Hides Hotel, stated that he objected on the grounds that increasing permitted noise levels of amplified entertainment would cause annoyance, disturbance and inconvenience to persons living, working and doing business at Hides Hotel, and would lessen the amenity of Hides Hotel and the quiet or good order of the locality.

1. The Assistant Commissioner of Police, Northern Region (“Police”) and the Chief Executive Office of Townsville City Council (“Council”) were invited to comment in relation to the application to vary the licence conditions. In a letter dated 15 January 2009 Police objected to any increase in noise levels in the outdoor areas of PJ O’Briens. However Police recommended that seven trading conditions be imposed on the licence in the event of a successful application to increase the noise levels inside PJ O’Briens.

1. In a letter dated 22 January 2009 Council advised OLGR that it objected to the application by PJ O’Briens on the grounds that the amenity, quiet or good order of the locality concerned would be lessened in some way.

1. The Cairns Regional Office of OLGR undertook a risk assessment in respect of the application and recommended that condition 250 should be replaced by two separate conditions to reflect the recommendation of Palmer Acoustics Pty Ltd, acoustic engineers, who had provided an acoustic report dated 27 October 2008 upon which PJ O’Briens relied. The acoustic report noted that PJ O’Briens was fully air- conditioned and the two entry doors were typically closed. The main entrance door had a sound lock installed. Acoustic tests were performed with the hotel operating, and with patrons entering and exiting the venue via the main entry door. The tests were conducted at 2:40am. The noise levels were measured at the dance floor at a height of 1.2metres underneath the sound ceiling. It was stated that the speakers in the sound ceiling were considered as the most impacting noise source at the nearest noise-affected receptor. The resulting break-out levels were measured at the nearest noise-sensitive place, which was above PJ O’Briens in front of Rooms 88 and 95 in Hides Hotel. In the Conclusion at paragraph 5 of the report it was stated that: –

“From this assessment, the following is recommended to meet the LLD requirements:

Limiting amplified entertainment in the entertainment areas to 113dB(c) below the JBN sound ceiling, 1.2 metres above the dance floor (entry doors open or closed)”

Relevant Statutory Provisions

1. Section 111 of the Act provides that a licensee may apply to vary a condition of the licence. Section 118 provides that an application to vary a licence must be advertised, and section 119 provides that an objection may be made on the grounds either, that undue disturbance or convenience will be caused to persons who reside or do work or do business in the locality concerned or, that the amenity, quiet or good order of the locality concerned would be lessened in some way if the application were granted.

1. Section 187(2) of the Act provides that an investigator may give written notice to a licensee requiring that noise stop, or be reduced to a level so that it is no longer an unreasonable noise. The term “unreasonable noise” in section 187 is defined in section 187(5) as noise “that exceeds limits prescribed under a regulation”.

Section 40 of Liquor Regulation 2002 provides that the limits for noise include relevantly, “between 10pm and 6am, the sound pressure level LOCT10, in a full octave band with central frequencies from 63HZ to 2000HZ, exceeding the background level LOCT90 by more than 8dB in any octave band.”

Discussion and findings

10. The statutory criteria for “unreasonable noise” in Section 40 have been created to provide certainty to licensees with respect to permissible levels for entertainment and patron noise. The acoustic report produced by Palmer Acoustics establishes that a noise limit of 113 dB(c) does not fall within the statutory criteria of “unreasonable noise”, and the report is unchallenged by any other expert evidence. Hides Hotel has not produced an acoustic report to demonstrate flaws in the Palmer Report or to support its contention that the levels of permissible noise sought by PJ O’Briens would create a unreasonable level of noise disturbance in the accommodation areas of its hotel immediately above PJ O’Briens dance floor.

11. There is ample evidence before this Tribunal that there have been many complaints about noise made to Hides Hotel by its guests who have occupied rooms in the hotel above PJ O’Briens dance floor. In response to the many complaints of this nature, PJ O’Briens installed a JBN sound ceiling above the dance floor in mid to late 2008 at a cost of $50,000 and installed a new sound system for a further $50,000. The directional speakers in the sound ceiling create a “cone of noise” on the dance floor so that noise levels on the dance floor do not permeate into surrounding areas of the premises despite there being no physical barrier between the dance floor and surrounding areas. All the letters of complaints from guests provided by Hides Hotel to the OLGR have been taken into account, most of which are dated 2007, with only one complaint in the last three months of 2008.  On the basis of this reduction in the number of complaints, this Tribunal is satisfied that the sound attenuation works undertaken by PJ O’Briens prior to making their application in this matter in late 2008 significantly reduced the impact upon Hides Hotel of noise from their premises.

12. the Tribunal is also satisfied, upon the basis of the Palmer acoustic report, that, following these noise attenuation works, the noise impact upon the Hides Hotel accommodation area is not unreasonable in terms of the statutory definition of unreasonable noise.

13. It is acknowledged that noise may continue to be audible in the accommodation areas of Hides Hotel but inaudibility is a higher standard than that required under the Act.

14. Mr Kingston, the chairman of the applicant company, submitted that the increase in noise levels sought by PJ O’Briens dramatically changes the characterisation of the premises from an Irish pub to a nightclub, with the result that the number of patrons will increase, those patrons will be more excitable thus creating more noise and causing an unacceptable level of noise disturbance to emanate from the outdoor areas into which patrons spill from the dance floor.

15.  Mr Kingston did not place any expert evidence before the Chief Executive to support his assertion that an increased noise level on the dance floor will increase patron noise in the beer garden area and these review proceedings are limited to evidence that was before the Chief Executive when the decision under review was made.[1]

[1] Section 33 of Act

16. The Tribunal has sympathy with the wider noise issues such as noise from air-conditioning units and generators and from the emptying of bottles in bins which were raised by Hides Hotel in their letter of objection to the application. However these review proceedings are concerned only with the issue of limits for entertainment and patron noise, and the noise limit for entertainment and patron noise in all areas, excluding the dance floor, will remain at 103dB(c).

17. Further, the Police had no objection to an increase in noise levels inside the premises provided that the increase was supported by an expert acoustic report. The Tribunal can give little weight to the Council objection which is in general terms, but includes a comment from Council’s Safe Communities Coordinator that a series of sound level recordings taken in 2005 in City Place did not flag P.J. O’Briens as being a problem source of noise at that time.

18. In conclusion, the Tribunal is satisfied that noise emanating from PJ O’Briens will not cause an unacceptable level of noise disturbance to Hides Hotel or to the amenity of the locality if the noise limit on the dance floor is increased from 103dB(c) to 113dB(c),and the decision of the Chief Executive in that regard made on 18 December 2009 is confirmed.

19. Hides Hotel has not formally sought review of the new condition imposed, with the consent of P.J. O'Briens, as part of the decision of 18 December 2009, which prohibits live entertainment after 1am. The Tribunal however agrees with the Chief Executive that this is an appropriate condition to be imposed in conjunction with the condition under review.

Order

20. The decision of the Chief Executive made on 18 December 2009 to vary the trading conditions of the licence held by the Second Respondent by increasing the noise levels on the dance floor from 103dB(c) to 113dB(c) is confirmed.