Staddon v Chief Executive, Department of Employment, Economic Development and Innovation
[2011] QCAT 258
•8 June 2011
| CITATION: | Staddon and Ors v Chief Executive, Department of Employment, Economic Development and Innovation and Anor [2011] QCAT 258 |
| PARTIES: | Ms Valerie Staddon Mr Christopher McDermott Ms Abby Staddon (Applicants) |
| v | |
| Chief Executive, Department of Employment, Economic Development and Innovation (First Respondent) Australian Leisure and Hospitality Group Limited (Second Respondent) |
| APPLICATION NUMBER: | GAR307-10 / GAR326-10 / GAR327-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 1 June 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mrs Glenice Spender, Member Ms Peta Stilgoe, Member |
| DELIVERED ON: | 8 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application of Australian Hospitality and Leisure Group Limited for a Commercial Hotel Licence in respect of premises at 5 Birkin Road Bellbowrie be provisionally granted, with trading hours defined as 8 am to 12 midnight Monday to Sunday, with standard trading conditions for a Commercial Hotel Licence and including the following special trading conditions: a) The operation of heavy vehicles and/or waste collection vehicles must only occur between 7 am to 7 pm, Monday to Saturday. b) The licensee must provide a courtesy bus for patrons from 7 pm to close of trade on Friday and Saturday evenings and from 10 pm on any other evening on which live entertainment is provided. c) Liquor may be sold or supplied only whilst the premises adheres to its principal activity of the sale of liquor for consumption on the licensed premises, or on and off the premises. d) The provisional licence does not allow the sale or supply of liquor under the authority of a Commercial Hotel Licence. e) The issue of a Commercial Hotel Licence is subject to a final inspection of the premises by an officer of the Office of Liquor and Gaming Regulation and the completion of any further requirements of the Chief Executive as a consequence of that inspection. f) The issue of the licence is subject to the lodgement of an acoustic report of which the content and recommendations satisfy the Chief Executive that any noise from the premises will not create a noise nuisance. g) The issue of the licence is subject to the lodgement of a current health certificate for the premises issued by the local authority under the Food Act 2006. h) The issue of the licence is subject to the lodgement of an appropriate Building Inspection Report for the premises issued in accordance with building fire safety laws. i) All the stated evidence must be produced to the Chief Executive by 15 June 2013 in accordance with the Development Approval |
| CATCHWORDS: | APPLICATION FOR COMMERCIAL HOTEL LICENCE – tavern in a suburb with no pre-existing generally licensed premises – high level of objections – principles governing assessment of objections – where applicants dissatisfied with Department’s assessment process – where adverse impacts minimised Liquor Act 1992, ss 33, 116, 118(5), 119, 121 Cheers Tavern, Kenmore [2002] QLAT 46 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Valerie Staddon |
| FIRST RESPONDENT: SECOND RESPONDENT: | Mr D J Robinson, Department of Employment, Economic Development and Innovation Mr C Watters, Counsel instructed by Mullins Lawyers |
REASONS FOR DECISION
To adopt the description provided by Ms Valerie Staddon, Bellbowrie is a quiet residential suburb, approximately 16 kilometres from the Brisbane CBD. It sits on a peninsula bounded by the Brisbane River and Moggill Road is the only effective vehicular access after the Moggill Ferry shuts at 6.30 pm. In recent years, new estates have brought many young families into the area although the outer fringes of the suburb remain rural residential, which creates a wide green belt between Bellbowrie and the outskirts of Kenmore. The suburb has a bottle shop and a licensed sports club but the nearest hotel is a 10.5 kilometre drive away in Kenmore.
The Chief Executive has provisionally granted a Commercial Hotel Licence to Australian Hospitality and Leisure Group Limited (ALH) for a medium-sized tavern at 5 Birkin Road Bellbowrie. The applicants, who are statutory objectors, have applied for a review of that decision.
It is important to set out the powers of the tribunal in a review. Section 33 of the Liquor Act 1992 provides that the tribunal must hear and decide the review of the decision by way of a reconsideration of the evidence before the chief executive when the decision was made.
The grounds on which an objection about an application may be made are[1] that, if the application were granted, one or more of the following may happen:
a) undue offence, annoyance, disturbance or inconvenience to persons who reside, work or do business in the locality concerned, or to persons in, or travelling to or from, an existing or proposed place of public worship, hospital or school;
b) harm from alcohol abuse and misuse and associated violence;
c) an adverse effect on the health or safety of members of the public;
d) an adverse effect on the amenity of the community.
[1] Section 119(3) Liquor Act 1992.
In deciding whether to grant a licence, the Chief Executive (and, by implication, the tribunal) must have regard to: the public interest so far as it relates to the objects of the Act; the impact on the amenity of the community; the objections made to the grant of the licence; and comments of the local government.[2]
[2] Sections 121(a) and (b).
The combined effect of sections 33, 119(3) and 121 is that the applicants may only seek a review of the Chief Executive’s decision on amenity grounds.
The applicants’ grounds for seeking a review of the Chief Executive’s decision are:
a)The Chief Executive’s review process was so flawed that the tribunal cannot be satisfied there is sufficient information on which a decision to grant the licence can be made.
b)The proposed tavern will introduce non-controllable and unacceptable impacts on amenity in:
i) A perception of interference in the very presence of the tavern in a family-orientated suburb, adjacent to community facilities.
ii) Increased vehicular and pedestrian noise.
iii) Rowdiness, hooliganism and potential violence.
iv) The viability of the existing sports club.
The Department’s process
Advertising
The applicants’ first complaint is that the advertising notice was not erected on the site for the whole of the required period. Mr McDermott pointed to the objections at pages 376, 377 and 394 of the Chief Executive’s appeal book as examples of objections that note this point. They are pro forma objections and the objector at page 394 is not identified. Mr McDermott also points to the Chief Executive’s own risk assessment which shows that one of the notices is missing.[3]
[3] Pages 511 and 512 of the appeal book.
The risk assessment analysis is at 21 December 2009, well after the expiry of the advertising period. Nothing can be made of the fact that the advertising was missing at that time. The tribunal also has the benefit of the statutory declaration of Mr Tison[4] who declares that the signs were conspicuously and continuously displayed for the required period.
[4] Page 410 appeal book.
[10] Even if Mr Tison’s declaration was erroneously made, section 118(5) of the Act provides that the Chief Executive may approve advertising that substantially complies with the advertising requirements. In our view, the fact that so many objections were filed is evidence that the advertising served its purpose in bringing the application to the attention of the community and, therefore, that it substantially complied with the requirements of the Act.
Transparency in the community impact statement
[11] The applicants’ second complaint about the process is that there is no evidence that the community impact statement complied with the requirements of the Act or that the information contained within it is accurate.
[12] A community impact statement must address the following[5]:
[5] Section 116(8) Liquor Act 1992.
a) the existing and projected population and demographic trends in the locality;
b) the number of persons residing in, resorting to or passing through the locality, and their respective expectations;
c) the likely health and social impacts that granting the application would have on the population of the locality;
d) an assessment of the magnitude, duration and probability of the occurrence of the health and social impacts;
e) the proximity of the proposed licensed premises or proposed premises to which the permit is to relate to identified sub-communities within the locality, including, for example, schools and places of worship, and the likely impact on those sub-communities.
[13] In preparing a community impact statement, the applicant must have regard to relevant guidelines issued by the Chief Executive.[6]
[6] Section 116(9) Liquor Act 1992.
[14] The applicants contend that: the surveys conducted for the community impact statement were not objective and neutral as required by Guideline 38; the survey was compromised because the research body was not accredited under the relevant ISO nor did it keep individual respondents’ names and addresses, describe the methodology or provide other details to ensure that the process was rigorous and transparent; and it did not conduct a minimum of 8 interviews with community advisers in the locality.
[15] There is nothing in the legislation that requires the community impact statement to comply with any standard save that it address the matters in s 116(8) and that it is objective and neutral. While the applicants may consider that registration as an ISO may be desirable, it is not mandatory. Guideline 38 makes the point that the Chief Executive may request additional consultation if it is considered that the consultation is insufficient or unbiased.
[16] Whatever the perceived shortcomings of the community impact statement, the concerns ventilated by the applicants at this hearing – noise, traffic and undesirable behaviour – are identified and addressed.[7] Therefore, they are matters to which the Chief Executive should have had regard when making the decision and matters to which we must turn our mind when considering the matter afresh.
[7] Pages 51 – 65 appeal book.
[17] The applicants are critical of the reported numbers of those in favour of the tavern. That criticism may have been legitimate but for the fact that the numbers were replicated in a second community impact statement and the number of objectors, when compared with the number of residents in the locality, shows that the objectors are a tiny minority of those potentially affected by the tavern. From a population of approximately 9,600, the Chief Executive received 54 individual objections and two petitions. Many of the signatories to the petitions also lodged individual objections. The statistics demonstrate that there is a community desire and need for a tavern as proposed.
[18] The applicants make the point that Guideline 38 states that the Chief Executive and this tribunal must “now give greater weight to the impact…”. They argue that this means the Chief Executive and the tribunal must prefer the views of the objectors over other considerations. That interpretation ignores the first sentence of the introduction to Guideline 38 which states:
“Amendments to the Liquor Act 1992 which commenced on 1 January 2009 have refocussed Section 116 of the Act from an examination of applications in terms of ‘public interest’ to ‘community impact’.”
[19] The intention of the introduction to the Guideline, when read as a whole, is that the focus is on the particular community, rather than public interest which was the primary focus prior to January 2009. The Guideline should not be read as meaning that the impact on the community is the primary consideration.
[20] Ms Valerie Staddon described ALH providing a second community impact statement as a “second bite at the cherry” which opportunity was not afforded to the residents. As we have already observed, the residents’ right to object is limited by the Act. Unlike an appeal under the Sustainable Planning Act 2009 it was never intended that residents have a right of appeal on all issues or an unlimited right to provide their own fresh evidence on the matters in dispute. Guideline 38 allows the Chief Executive to call for a supplementary community impact statement. Accordingly, there can be no sinister implication in ALH’s provision of a second community impact statement.
Objector’s conference and report
[21] The applicants say that the objector’s conference was biased and that they were constantly gagged during the debate. They say that the conference report does not accurately express their views. They also criticised the timing of the conference.
[22] Mr Robinson, on behalf of the Chief Executive, pointed out that: there is no legislative requirement to hold a conference; there is no time for a conference that will suit everyone; the issues raised at the conference were no different from those raised in the written objections; that there is no ability for the Chief Executive to consider new issues that might be raised at the conference; and that the purpose of the conference was to see if there was a possibility of negotiation between the objectors and ALH.
[23] ALH makes the point that it commissioned the second community impact statement because of the concerns expressed at the community conference.
[24] As we indicated to the applicants at the hearing, whether or not the conference, and the conference report, is flawed is irrelevant. We are charged with deciding the application afresh based on the material that was available to the Chief Executive. The issues of amenity are clearly identified and the applicants’ arguments in relation to the amenity issues are well articulated.
That the Chief Executive has not complied with the law
[25] Ms Abby Staddon asserts that the Chief Executive admits that it has not complied with the law because it received feedback from only four community advisers whereas Guideline 38 requires feedback from eight community advisers. The Chief Executive states that the community impact statement has complied substantially with the law. The applicants say that “near enough is not good enough”. It is important to remember that Guideline 38 is just that, a guideline. It does not have the character of a legislative imperative. We have already noted that Guideline 38 does allow the Chief Executive to call for further information if it is concerned with the community impact statement; it did not do so. We have also noted that the community impact statement addresses all of the matters that the applicants wish to argue.
Lack of transparency
[26] The applicants complain that there is no proof of the Chief Executive having considered the impact on the community. As we have already noted, the Chief Executive is not required to give community impacts greater weight than any other consideration. We have also noted that, even if there was a lack of transparency, the tribunal is charged with making the decision afresh. Even so, the applicants’ contentions in this regard are not sustainable: there is a community impact analysis on record[8] and a memo that records the application has been considered by three officers before being submitted to the general manager for approval.[9]
[8] Pages 613 – 623 appeal book.
[9] Pages 630 – 635 appeal book.
[27] Ms Valerie Staddon argued that the Chief Executive had not considered properly the issue of infiltration as required by Guideline 38. Although none of the Chief Executive’s reports specifically use the word “infiltration” it is apparent that the officers were aware that there are no premises with a general licence presently operating in the area.[10] As the tribunal has previously observed, in evaluating amenity, it is necessary to assess the degree of change from that presently enjoyed by the residents.[11] Necessarily, that assessment must include a consideration of the issue of infiltration.
[10] See, for example, page 613 appeal book.
[11] Cheers Tavern, Kenmore [2002] QLAT 46.
QCAT procedure
[28] Ms Valerie Staddon applied for access to the complaints register for the licences referred to at pages 680 to 689 of the Statement of Reasons. The Chief Executive said that it supplied the documents but Ms Staddon disagrees. Ms Staddon states that she advised the tribunal that she was dissatisfied but the tribunal has taken no action.
[29] These applications have been characterised by a constant and voluminous stream of correspondence from the applicants. It is difficult to separate general correspondence from applications and submissions. The tribunal has an application for miscellaneous matters on its website.[12] The use of that form would have clearly identified that there was an application on foot and the relief that Ms Staddon was seeking. In any event, the relevance of the documents sought by Ms Staddon is not readily apparent.
[12] Ms Staddon also notes that late objections were not considered but that the tribunal accepted late submissions from the respondents. There are three points to make in relation to this submission:
a) The tribunal has a specific power to grant an extension of time for compliance with its orders.[13]
b) The Liquor Act 1992 imposes a strict time limit.[14]
c) The objections already received covered all of the issues that were relevant to this licence application.
[13] QCAT Act, s 61(1).
[14] Section 119(1).
Amenity and community impact
[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.[15]
[15] Section 3(a) Liquor Act 1992.
[32] 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.[16] 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.
[16] Cheers supra at [41].
The presence of the tavern in an area of community facilities
[33] The Staddon applicants state that the mere presence of a tavern will be an unavoidable focal point that will have a negative impact on their lives on a daily basis. They say that they do not want to be around people consuming alcohol as they go about their day.
[34] As we have already observed, the Act starts with the proposition that alcohol, and the provision of alcohol, is part of everyday society. In allowing the tavern to be a code assessable development and adjacent to the shopping precinct, the Brisbane City Council has indicated its preference that the tavern be considered part of the community infrastructure.
[35] We note Ms Valerie Staddon’s comment that the proposed site was designated MP3 in 1990, before most of the housing in Bellbowrie existed, the 2000 City Plan introduced an updated list of possible sites and the 2008 application was made without notice to the local community. The fact that the proposed site was intended to have a commercial use from as early as 1990 should have put any intending resident on notice that some form of intensive use of the site was probable. From 2008, any intending resident had the means available to determine that a tavern on this site was, at least, possible. Ms Valerie Staddon’s argument does not advance her case.
[36] All of the applicants gave evidence that they specifically chose Bellbowrie because of the lack of licensed facilities. Mr McDermott told the tribunal that he has lived in the suburb for 52 years. Clearly, much has changed in that time. The tribunal has no evidence of when the Staddons made their decision to live in Bellbowrie therefore we can make no comment as to whether their expectations are reasonable in the circumstances. However, on any view, while we may have some sympathy for the applicants’ position, their views are not concomitant with modern suburban living.
Noise
[37] The applicants properly acknowledge that ALH will control noise within the tavern. They complain about the noise that ALH will not be able to control; people leaving the tavern, closing of car doors and patrons’ discussions in the car park and beyond. Ms Valerie Staddon is particularly concerned with sleep disturbance and has drawn our attention to the fact that, unlike other tavern sites, there is no room for landscaping between the tavern and nearby housing.
[38] The acoustic report submitted to Council anticipated an objection about noise[17], the Council imposed conditions that addressed the problem[18] and the liquor licence itself is subject to the lodgement of an acoustic report and may be the subject of further conditions.[19]
[17] Page 112 appeal book.
[18] Conditions 18, 19 and 20, pages 190-191 appeal book.
[19] Page 634 appeal book.
[39] Ms Valerie Staddon lives on Moggill Road. She says that sirens of vehicles attending accidents and incidents will affect her ability to sleep. That potential exists now; indeed Ms Staddon told the tribunal that she had already experienced a fatal accident on her doorstep. As we have previously noted, the intention of the Act is to minimise, not eliminate, impacts. The potential for siren noise is not, in our view, a reason to refuse a licence.
[40] Mr McDermott drew our attention to the objection of Mr Muller[20] in which he notes that the night time background noise measured at his residence is 30dB(A). No doubt he will take comfort from the Council’s condition 15 (that the average maximum noise level between 10 pm and midnight is background + 3dB(A)) and conditions 21 and 22 which deal with air-conditioning, plant and equipment noise.
[20] Page 379 appeal book.
Traffic
[41] The applicants have contradictory arguments in relation to traffic.
[42] They rightly point out that Moggill Road is built to a rural standard with no kerbing and channelling or lighting. They say that the road is dangerous at night. That argument tends to favour the introduction of a tavern into the local area so that residents do not have to negotiate a dangerous road in order to access a generally licensed premises.
[43] The applicants also say that Moggill Road has almost no traffic after the shopping centre closes at 9 pm and the introduction of a tavern will mean that traffic will traverse this route after that time. Moggill Road is a public road. Residents who use it, or live adjacent to it, must expect that it can be used by any person at any time. There is no evidence that the road is not capable of handling the projected increase in traffic volume.
[44] Mr McDermott fears that the tavern will turn into a de facto truck depot and that trucks will be parking off-site. Firstly, Mr McDermott provides no evidence that this tavern, effectively located at the end of a 10.5 km cul-de-sac, will be a magnet for hungry and thirsty truck drivers. More importantly, it appears that Mr McDermott has misread the condition relating to truck movements. Condition 18[21] is directed to the operation of delivery and waste management vehicles that will service the site.
[21] Page 190 appeal book.
[45] Mr McDermott also points to the problem of rat running[22] to avoid police RID teams. That would appear to be an isolated problem to which Queensland Police operations can respond.
[22] Page 263 appeal book.
Courtesy Bus
[46] The applicants gave evidence that it is difficult to call a taxi to Bellbowrie, because of its dead-end nature. ALH has undertaken to provide a courtesy bus to address the lack of public transport. The applicants pointed out that the commitment to provide a courtesy bus was limited to times when the tavern was providing live entertainment yet ALH told the tribunal that it would not be providing live entertainment. The applicants say that the offer of the courtesy bus is, therefore, illusory.
[47] We agree that ALH’s current offer to provide a courtesy bus appears to be no offer at all. If we determine that the licence should be granted, it should be a condition of the licence that the courtesy bus is a practical alternative to driving or public transport.
Anti-social behaviour
[48] The applicants and many objectors point to the fact that there is already anti-social behaviour in the Bellbowrie area; that Queensland Police is not responding effectively to complaints about this behaviour; and the addition of alcohol will simply exacerbate this behaviour in the area.
[49] As we have already pointed out, the Act does not contemplate that there will be no anti-social behaviour; it seeks to minimise that behaviour and balance it with the legitimate expectation that the community will be able to access alcohol. ALH submitted to the Chief Executive that anti-social behaviour will be addressed by the following measures:
a) There will be no disco or loud music so it will not be a late night entertainment venue for young people; the tavern is intended to cater to families.
b) Binge drinking and excessive consumption of alcohol is actively discouraged in its hotels. It has a range of Responsible Service of Alcohol initiatives.
c) It will employ security to regulate patron behaviour.
d) It does not intend to trade for the full range of hours.
[50] The applicants’ primary submission is that the suburb is remote and that police and emergency services will not be in a position to respond in a timely way to any unacceptable behaviour[23]. Queensland Police had no such concerns.[24] We note that the Queensland Police made inquiries of local police prior to preparing its response. It must have been aware of the location of police stations and the operational requirements before providing the response. For that reason, we prefer the evidence of Queensland Police over that of passionate, and perhaps less objective, residents.
[23] Pages 275, 390-391 appeal book.
[24] Page 399 appeal book.
[51] The applicants also point to the recent shooting of a Queensland Police officer at Pacific Pines as evidence of the tavern’s inability to control anti-social behaviour once patrons leave the premises. Violence of this sort is, of course, regrettable but it must be placed in context: the Gold Coast is a different demographic; it is one incident on one night at one licensed premises among many hundreds across the State; and the public is not aware of the particular circumstances of this tragic incident.
Sensitive areas
[52] There was much debate about whether two child care centres were sensitive areas and within the 200 metre radius from the tavern site. Paragraph 8.3 of Guideline 38 states, in part: “In assessing certain licensed premises…a distance of 200 metres applies.”
[53] Guideline 38 does not say that, if there is a sensitive area within 200 metres, the licence should be refused. It says that these areas “warrant special consideration” and that “the attitude and expectations of school staff should be addressed…”.
[54] None of the schools in the area responded to letters sent to them on behalf of ALH, nor did they lodge any objection. The applicants say that we cannot assume that silence equals support. We can say, however, that silence equals a lack of serious opposition.
[55] The applicants say that the mobile library is a sensitive area which parks well within the 200 metre boundary. A mobile library is not a school, so is not within the definition of paragraph 8.3 of Guideline 38. The library is operated by the Brisbane City Council. Despite the submissions by the local Councillor, it had no objections to the proposed licence.[25]
[25] Page 401 appeal book.
Sports Club
[56] The applicants’ submission that the tavern would affect the existing sports club’s viability transformed, at the hearing, into an argument that, if the club was no longer viable, that would result in the withdrawal of community facilities which would, in turn affect the amenity of the suburb. They say that the club, being a not-for-profit association commits 100% of its profits to the community whereas ALH concedes that it will not put all of its profit back into Bellbowrie.
[57] There is simply no evidence before the tribunal to enable us to assess this argument. We do not know the current turnover of the club; we do not know the club’s annual profit; we do not know how many people are members of the club; we do not know what facilities it currently provides or the cost of providing them; we do not have any statistics on how the introduction of a facility with a general licence affects a currently existing club.
Trading hours
[58] Mr McDermott told the tribunal that the club has the same licensing hours as are proposed for the tavern but that it rarely trades beyond 9.30 pm except for a “party night” once a month. Mr McDermott says that, because the ability to trade until midnight will alter the character of the traffic on Moggill Road, the licensing hours should be limited to 9.00 pm.
[59] ALH says that its trading hours will be determined by demand. It will not stay open if there are no patrons to service.
[60] We do not see the logic in Mr McDermott’s argument. If the sports club’s “party night” does not change the character of Moggill Road, then there is no evidence to suggest that the same trading hours for the tavern will change the character of the road.
Conclusion
[61] We have considered the objections and the applicants’ submissions carefully. We are satisfied that the benefits to the residents of Bellbowrie and its surroundings in the provision of a family-orientated tavern outweigh the possible detrimental impact on the amenity of the community. As we have previously noted, the Liquor Act 1992 does not contemplate that there will be no impact, simply that the impact is minimised. While we acknowledge that some residents will suffer some diminution in their amenity, the conditions of the Development Approval and the proposed licence act to diminish those impacts to an acceptable level. Because we consider that one of the conditions of the provisional licence should be amended, the applications succeed to that limited extent, but the order of the tribunal is that the provisional licence should be granted with conditions.
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