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  4. David Hird & Lorys Hird v Commissioner for Liquor and Gaming & LHG2 Pty Ltd T/A Kooyong Motor Hotel - [2017] QCAT 261

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David Hird & Lorys Hird v Commissioner for Liquor and Gaming & LHG2 Pty Ltd T/A Kooyong Motor Hotel[2017] QCAT 261

David Hird & Lorys Hird v Commissioner for Liquor and Gaming & LHG2 Pty Ltd T/A Kooyong Motor Hotel[2017] QCAT 261

CITATION:

David Hird & Anor v Commissioner for Liquor and Gaming & Anor [2017] QCAT 261

PARTIES:

David Hird

Lorys Hird

(Applicants)

v

Commissioner for Liquor and Gaming

LHG2 Pty Ltd trading as Kooyong Motor Hotel

(Respondents)

APPLICATION NUMBER:

GAR136-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

22 February 2017

HEARD AT:

Mackay

DECISION OF:

Member Beckinsale

DELIVERED ON:

8 August 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision dated 24 April 2016 to grant a permanent extended trading hours approval is confirmed subject to the inclusion of the additional condition: “The licensee will have food prepared on the premises available to patrons at all times while trading.”

CATCHWORDS:

GAMING AND LIQUOR – ADMINISTRATION – LIQUOR LICENSING – PERMITS AND MISCELLANEOUS APPLICATIONS – impact on amenity – where adverse conditions minimised – where new conditions imposed on licence and further condition agreed to at hearing – application for review otherwise dismissed

Liquor Act 1992 (Qld), s 21, s 33, s 105, s 117, s 118, s 119, s 121, s 128A, s 128B

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(c), s 20(1), s 21, s 24(1)

Staddon and Ors v Chief Executive Department of Employment, Economic Development and Innovation and Anor [2011] QCAT 258

APPEARANCES:

 

APPLICANT:

David Hird and Lorys Hird

RESPONDENT:

Commissioner for Liquor and Gaming represented by Mr Robinson of counsel

LHG2 Pty Ltd represented by Ms Cox

REASONS FOR DECISION

Background

  1. [1]
    On 24 April 2016, the Commissioner for Liquor and Gaming granted to LHG2 Pty Ltd, the licensee of the Kooyong Motor Hotel, located at 1 Harbour Road Mackay, an application for extended trading hours.
  2. [2]
    The Kooyong’s trading hours were 10am to midnight Monday to Sunday. The application sought and granted was for an extension from midnight until 2am Monday to Sunday.
  3. [3]
    Conditions were imposed which the Commissioner contended were designed to ensure the amenity of the community would be unlikely to be adversely affected.[1]
  4. [4]
    Mr and Mrs Hird lodged an objection to the application and applied for a review of the decision. They reside at number 4 Bassett Street, North Mackay. The proximity of the Kooyong to the Hird residence can be seen in the satellite print produced.[2]

Legislative Framework for Review

  1. [5]
    The Tribunal may review decisions of the Commissioner to grant or refuse an application for extended hours[3] by way of a fresh hearing on the merits[4] to produce the correct and preferable decision.[5] In conducting the review, the Tribunal has all the functions of the original decision-maker[6] and may confirm or amend the decision, set aside the decision and substitute its own, or return the matter to the decision-maker for reconsideration.[7] The Tribunal is required to hear the review on the basis of the evidence that was before the decision-maker unless leave is given for new material to be presented.[8]

Legislative Framework for Application for Extension of Trading Hours

  1. [6]
    Section 3 of the Liquor Act 1992 (Qld) (the Act) sets out the main purposes of the Act. Section 86(1) sets out the hours for which an application for extended trading hours may be granted. The Tribunal (standing in the place of the Commissioner) may only approve extended trading hours if, after considering all the relevant matters, it is satisfied with the requirements of the Act.[9]
  2. [7]
    The grounds upon which an objection can be made by a member of the public are that if the application were granted, one or more of the following may happen:
    1. 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;
    2. harm from alcohol abuse and misuse and associated violence;
    3. an adverse effect on the health and safety of members of the public;
    4. an adverse effect on the amenity of the community.[10]
  3. [8]
    The matters which the Tribunal must have regard to in deciding whether to grant an application for extended trading hours include[11] those matters  addressed in a community impact statement, public interest as it relates to the main purpose of the Act or the impact on the amenity of the community, objections, comments from local government, comments from the police district officer, the impact on the amenity of the community, and:
    1. (i)
          the previous conduct of the applicant in discharging any duties under this Act previously placed on the applicant, especially for the premises for which the extension is sought; and
    2. (ii)
          the applicant’s ability to control the noise and behaviour of the number of persons that could reasonably be expected to be on and in the vicinity of the premises if the extension were granted; and
    3. (iii)
          the suitability of the premises and its facilities for the purpose for which the extension is sought.[12]
  4. [9]
    When considering the effects of a decision on the health and safety of members of the public or the amenity of a community or locality,[13] the Tribunal may take into account: the disbursement of persons leaving the premises; the availability of public transport during, and immediately before or after, the hours of operation; and the nature and level of noise and the behaviour of persons in or near the premises including violence; vandalism; nuisance; drunkenness; public urination, vomiting or defecation; disorderly, riotous, threatening, indecent, offensive or insulting behaviour; noisiness; and obstruction of a road, footpath or other thoroughfare.[14] The Tribunal is not limited to a consideration of these matters alone.[15]
  5. [10]
    The Act does not contemplate that, for an application to be granted, there must be no impact on amenity; but that the impact is minimised.[16]

Applicants’ Submissions

  1. [11]
    Mr and Mrs Hird were not legally represented. Their submissions can be best gleaned from a compilation of the original objection, the Application for Review to the Tribunal, and a letter dated 28 August 2016 that was filed 30 September 2016.
  2. [12]
    The letter by Mr and Mrs Hird dated 29 October 2014, which was accompanied by a petition containing forty other signatures, sets out concerns as follows:
  1. That the Notice of Application could only be viewed by limited pedestrian traffic;
  2. Annoyance from noise and visual disturbance;
  3. The bandstand area, pool table and barbecue area is in close proximity to residences;
  4. Annoyance and disturbance caused by intoxicated patrons being loud and using abusive language;
  5. Disturbance from loud music on Thursday, Friday and Saturday nights;
  6. Residents and businesses collect bottles and tins from the area the morning after;
  7. Inability to lodge a complaint about noise compliance at 1am;
  8. That the facilities at the Kooyong deter it from being used for fundraising;
  9. That the trading hours are unwarranted given the facilities in the area;
  10. That management practices at the Kooyong need an overhaul;
  11. That they have been unable to obtain a copy of the community impact statement.
  1. [13]
    The Application for Review states the decision is wrong or not properly made as follows:
  1. There is no demonstrated need for extended hours;
  2. The hotel has already reduced its trading hours of Sundays and Mondays;
  3. The standard community impact statement when obtained by right to information from Department of Justice and Attorney General has a number of incorrect statements and no community consultation occurred;
  4. In 503 days of deliberation there has been changes to hotel management, state government and member, local council and lord mayor;
  5. Impact on local residents has not been properly considered and the OLGR Mackay compliance officer handling the case has resigned.
  1. [14]
    Other matters listed as important facts in the Application were:
  1. The proposed $8 million redevelopment cited for second half of 2015 has not proceeded;
  2. Claim that extended trading hours would be detrimental to real estate values in the area;
  3. If further conferences are held they should be on the site of the Kooyong Motor Hotel.
  1. [15]
    In their letter dated 28 August 2016, Mr and Mrs Hird refer to:
  1. Their earlier objections;
  2. The petition;
  3. The written submissions of then Member of State Parliament, Tim Mulherin;
  4. The written submissions of the Mackay Regional Council;
  5. Attendance by residents at the conference;
  6. Obtaining of the Community Impact Statement;
  7. That a reduction in trading hours is evidence that extended hours are not warranted;
  8. That the reduction in trading hours could be a result of a downturn in the region’s economy;
  9. There being no evidence of a proposed redevelopment going ahead;
  10. Whether other documents are missing given that the satellite print was received as a supplementary document;
  11. An alternative interpretation of market analysis of gambling;
  12. Hotel guests being impacted by noise and vehicle lights of departing patrons;
  13. Departmental pressure placed on OLGR Mackay for a decision.

Submissions of the Commissioner

In Response to Applicants’ Submissions

  1. [16]
    In response to Mr and Mrs Hird’s submission document, being the letter dated 28 August 2016, the Commissioner submitted that in relation to paragraphs 1-4, those matters were all considered as part of the Commissioner’s decision.[17]
  2. [17]
    As regards paragraph 5, the Commissioner submitted that an objections conference was held, which is not a legislative requirement and no resolutions passed.
  3. [18]
    Regarding paragraph 6, the Commissioner noted Mr and Mrs Hird received an explanation and apology for not being provided a colour copy of the Community Impact Statement. They were provided with a black and white copy.
  4. [19]
    In relation to paragraphs 7 to 9, the Commissioner submitted there is no legislative requirement to trade during the extended hours applied for nor to demonstrate market need.
  5. [20]
    As to paragraph 10, the Commissioner noted the plan tabled at the objections conference has been filed.[18]
  6. [21]
    In relation to paragraph 11, the Commissioner submitted gambling data is not relevant to the application.
  7. [22]
    As regards paragraph 12, the Commissioner noted the Community Impact Statement refers to on-site parking; however, the Commissioner submitted the Licensee is committed to maintaining acceptable levels of noise by scrutinising patron behaviour in and around the vicinity. The Commissioner also submitted that residences are predominantly located on the opposite side of Harbour Road, which is a thoroughfare for north-south traffic in Mackay.
  8. [23]
    In relation to paragraph 13, the Commissioner submits internal emails seeking an update from the regional office of Office of Liquor and Gaming Regulation are appropriate.

Submissions in Summary of Commissioner

  1. [24]
    The extended trading hours application met all OLGR requirements in terms of the premises and information required.
  2. [25]
    The previous conduct of the Licensee had been considered and there were no recent adverse compliance history or complaints recorded.
  3. [26]
    Concerns of local residents and the Council, especially as regards to the close proximity of residences which may be disturbed by noise, intoxicated patrons and anti-social behaviour, were considered.
  4. [27]
    The Risk Assessment Management Plan documented the Licensee’s commitment to minimising harm associated with the conduct of the business.
  5. [28]
    No amplified entertainment is to be conducted during the extended trading hours and a range of facilities is available to patrons until close of trade.
  6. [29]
    The legislation does not require the Licensee to demonstrate whether there is a market during the extended trading hours sought.
  7. [30]
    There were no objections from Police or the OLGR Compliance Unit.
  8. [31]
    The Commissioner was satisfied there is some potential for local residents to be adversely affected by the grant of the extended trading hours application; however, the Commissioner believed those adverse effects could be prevented from becoming undue or unreasonable provided the conditions of the licence and the provisions of the Act were complied with. The Act provides avenues to complain to OLGR and empowers OLGR to address issues in the event of substantial non-compliance.
  9. [32]
    At the hearing, the Commissioner submitted that the physical location of Mr and Mrs Hird in relation to the premises decreases the likelihood of there being any significant impact on Mr and Mrs Hird due to the grant of the extended trading hours. The premises are separated from the residence of Mr and Mrs Hird by two lanes in one direction, three lanes in the other, a median strip, a nature strip, and a residential road.[19]
  10. [33]
    The Commissioner also submitted that the Licensee, following the grant of extended hours would be subjected to twelve detailed conditions whereas previously a single condition applied.

Submissions of LHG2 Pty Ltd

  1. [34]
    LHG2 Pty Ltd made no submissions but supported and relied on the submissions of the Commissioner.

Discussion

  1. [35]
    A number of Mr and Mrs Hird’s concerns relate to ongoing unhappiness with the operation of the premises near their residence and are not relevant to the consideration of the application for extended trading hours. They have in a number of respects been unhappy with the process of the application being considered; for example, that the local OLGR was placed under some pressure by enquiries being made by head office. The Tribunal conducts a fresh review so some such concerns should be countered.
  2. [36]
    Some of their concerns regarding the process are at odds with what is legislated; for example, what is required of signage of the proposed application on the premises. Issues around the need for the hours to be extended are irrelevant and a decision-maker is guided by the legislation.
  3. [37]
    There is no evidence that the requirements of sections 105, 117, 118, and 119 of the Act have not been met by the licensee.
  4. [38]
    A comprehensive Community Impact Statement was prepared and it concluded there were very few additional identifiable community risks as a consequence of the additional hours sought and that potential benefits are likely to outweigh potential costs. The document addresses the matters required by section 116(8) of the Act to which a decision-maker must have regard.[20]
  5. [39]
    The objections and the petition have been noted above as well as the comments of Mackay Regional Council which are not supportive of the application for extended trading hours being granted.[21]
  6. [40]
    The concerns raised by the Council were: the proximity of the premises to residential premises, with the increased times “likely to cause disturbance …in relation to noise, anti-social behaviour and amenity”; no evidence of need to be open after midnight; and that “the late close outside City Centre may put additional strain on resources such as emergency services and taxis.”[22]
  7. [41]
    The police district officer for the locality had no objections.[23]
  8. [42]
    The impact on the amenity of the community, raised as concerns by Mr and Mrs Hird as well as the local authority, must be considered. A Risk-Assessed Management Plan[24], in my view, addresses issues relating to noise and impact on the amenity of the community and evidences procedures to minimise harm associated with the conduct of the Licensee’s business.
  9. [43]
    Of relevance to a consideration of impact on amenity are the additional conditions which will, with the granting of the extended hours, apply to the Licence. These are eleven standard conditions and a specific condition that “amplified entertainment must not be conducted at the premises after 12.00am”.[25]
  10. [44]
    The standard conditions includes: requirements for the keeping of a Register of Complaints; the employment of crowd controllers in specified ratios having regard to numbers of patrons, for particular timeframes; for surveillance to continue for at least an hour after closing time; and for the operation of closed-circuit television. In my view, the addition of these conditions will mean a greater control over the impact on the amenity of the community than what existed prior to the extension of trading hours given those conditions did not then apply.
  11. [45]
    In response to a concern raised by Mr Hird at the hearing about the availability of food to patrons, the Licensee agreed to an additional condition.
  12. [46]
    It was reported that at the objections conference, the focus of concerns was around noise from entertainment and from patrons leaving the premises as well as light from illuminated signs.
  13. [47]
    The conditions to be included on the Licence outlined above go some way to addressing the noise concerns. Additionally, the Licensee proposed that karaoke would be held indoors and that staff would call taxis for patrons on request.
  14. [48]
    There was no evidence of the Licensee not previously discharging duties under the Act. Police records indicated only a limited number of incidents involving intoxicated patrons in recent times and OLGR Activity Details indicated that multiple daytime as well as afterhours inspections were conducted with no breaches detected. Caution notices were issued to the Licensee in 2010 and 2011 following an assault investigation by Police but there were no enforcement actions taken against the Licensee.
  15. [49]
    I agree with the Commissioner that there is potential for local residents to be adversely affected by the grant of the extended trading hours and that such adverse effects could be prevented from becoming unreasonable provided the conditions of the licence and the provisions of the Act are complied with. In my view, the additional conditions to be placed on the licence go further to minimising impact on the community than did the terms of the licence without the extended trading hours.

Order

  1. [50]
    Accordingly, I confirm the decision dated 24 April 2016 to grant a permanent extended trading hours approval, with the additional condition agreed to by both respondents, that “The licensee will have food prepared on the premises available to patrons at all times while trading.”

Footnotes

[1] Reasons Document filed 28 July 2016, [20].

[2] Reasons Document, page 176.

[3] Liquor Act 1992 (Qld), s 21.

[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).

[5] Ibid, s 20(1).

[6] Ibid, s 19(c).

[7] Ibid, s 24(1).

[8] Liquor Act 1992 (Qld), s 33.

[9] See Liquor Act 1992 (Qld), s 105, s 117, s 118, s 119, and s 121.

[10] Ibid, s 119(3).

[11] Ibid, s 121(1).

[12] Ibid, s 121(1)(g).

[13] Ibid, s 128A.

[14] Ibid, s 128B.

[15] Ibid, s 128A(2).

[16] Staddon and Ors v Chief Executive Department of Employment, Economic Development and Innovation and Anor [2011] QCAT 258.

[17] Statement of Reasons, [39], [40], [41], and [69].

[18] Ibid, [176].

[19] Statement of Reasons, [176].

[20] At pages 8 – 16.

[21] Liquor Act 1992 (Qld), s 121(1)(b) and (c).

[22] Letter dated 17 November 2014.

[23] Liquor Act 1992 (Qld), s 121(1)(d).

[24] Dated 25 August 2014.

[25] Reasons,175.

Close

Editorial Notes

  • Published Case Name:

    David Hird & Lorys Hird v Commissioner for Liquor and Gaming & LHG2 Pty Ltd T/A Kooyong Motor Hotel

  • Shortened Case Name:

    David Hird & Lorys Hird v Commissioner for Liquor and Gaming & LHG2 Pty Ltd T/A Kooyong Motor Hotel

  • MNC:

    [2017] QCAT 261

  • Court:

    QCAT

  • Judge(s):

    Member Beckinsale

  • Date:

    08 Aug 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Staddon and Ors v Chief Executive, Department of Employment, Economic Development and Innovation and Anor [2011] QCAT 258
2 citations
Jump To
Cite 1 - [2011] QCAT 258
Cite 2 - [2011] QCAT 258

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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