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- Giribon v Commissioner for Liquor and Gaming Regulation[2018] QCAT 169
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Giribon v Commissioner for Liquor and Gaming Regulation[2018] QCAT 169
Giribon v Commissioner for Liquor and Gaming Regulation[2018] QCAT 169
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Giribon & Anor v Commissioner for Liquor and Gaming Regulation & Anor [2018] QCAT 169 |
PARTIES: | LUKE GIRIBON (first applicant) MARIE SHEEHY (second applicant) v COMMISSIONER FOR LIQUOR AND GAMING REGULATION (first respondent) BELLE MEADE PTY LTD (second respondent) |
APPLICATION NO/S: | GAR273-17 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 12 June 2018 |
HEARING DATE: | 6 June 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
ORDERS: | The decision of the Commissioner for Liquor and Gaming Regulation made on 21 August 2017 to grant an application for an adult entertainment permit is amended to impose the following additional conditions:
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CATCHWORDS: | GAMING AND LIQUOR – ADMINISTRATION – LIQUOR LICENSING – PERMITS AND MISCELLANEOUS MATTERS – where application for adult entertainment permit granted – where premises located in residential building – where local authority has made comments – whether combined total of licensed brothels and premises permitted to provide adult entertainment would substantially affect the character of the locality – whether undue annoyance, disturbance or inconvenience to persons residing, working or doing business in the area – whether harm from alcohol abuse and misuse – whether adverse effect on health and safety of members of the public – whether an adverse effect on the amenity of the community – whether additional conditions should be imposed Acts Interpretation Act 1954 (Qld), s 14A Liquor Act 1992 (Qld), s 4, s 103P, s 103Q, s 105B, s 107D, s 117, s 118, s 119, s 121 Liquor Regulations 2002 (Qld), r 29 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Bad Girls Maroochy Pty Ltd v Chief Executive of the Department of Tourism, Racing & Fair Trading [2003] QSC 171 Fine Fidelity & Ors v Commissioner of Liquor and Gaming & LA Showgirls Py Ltd [2014] QCAT 89 Hanly & Anor v Chief Executive, Liquor Licensing Division [2005] QCCTL 9 |
APPEARANCES & REPRESENTATION: |
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Applicants: | Self-represented |
First Respondent: | D Robinson, instructed by the Office of Liquor and Gaming Regulation |
Second Respondent: | R Steele, of RSA Liquor Professionals |
REASONS FOR DECISION
- [1]On 21 August 2017, a delegate of the Commissioner for Liquor and Gaming (‘the Commissioner’) granted an adult entertainment permit to Belle Meade Pty Ltd (‘Belle Meade’) for premises then known as ‘Zuri Lounge’. The adult entertainment permit was granted subject to the following conditions:
The permittee must comply with the management plan submitted to the Office of Liquor and Gaming Regulation.
The permit does not authorise adult entertainment on Christmas Day or Good Friday.
The permittee must ensure that spruiking or touting for business does not occur outside or in the proximity of, the premises.
Sufficient lighting must be provided to ensure controllers can properly supervise the entertainment and patron behaviour.
The approved area must be fully enclosed in a way that prevents a person outside the area from seeing inside the area.
The permittee must keep and maintain an up-to-date daily register of the name of each controller, with each controller’s starting and finishing time entered at the time of commencement and completion of duties as the premises as a controller respectively.
When adult entertainment is being provided under the authority of an adult entertainment permit, a licensee, permittee or controller must be present at all times, in all rooms and/or areas where the adult entertainment is being conducted to ensure that it is provided in accordance with the Liquor Act and all conditions of the permit.
- [2]The premises occupy the ground floor of the Sun Apartments Building. Mr Giribon and Ms Sheehy are residents of the Sun Apartments Building, and have applied to the Tribunal seeking to have the grant of the adult entertainment permit overturned. Belle Meade was joined as a second respondent to the proceedings.
- [3]The Tribunal has jurisdiction to review the decision to grant an adult entertainment permit under the Liquor Act 1992 (Qld) (‘the Liquor Act’) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ‘(the QCAT Act’).
- [4]Under s 20 of the QCAT Act, the Tribunal’s role is to make the correct and preferable decision following a fresh hearing on the merits. Under s 33(1)(a) of the Liquor Act, the Tribunal must decide the review on a reconsideration of the evidence before the Commissioner when the decision was made. A bundle of relevant documents containing the relevant evidence is before me.
The legislative framework
- [5]The legislative framework for the grant of adult entertainment permits is set out in Part 4A, Division 6 of the Liquor Act and Part 7 of the Liquor Regulation 2002 (Qld) (‘the Liquor Regulation’).
- [6]Relevantly, s 103P authorises the holder of an adult entertainment permit to provide adult entertainment for the duration of the hours that are stated in the permit and within an area of the licensed premises approved by the Commissioner. The adult entertainment permit is subject conditions prescribed under the Liquor Regulation or imposed by the Commissioner.
- [7]Section 103Q requires the approved area to conform with various requirements such as being fully enclosed in a way that prevents a person outside the area from seeing inside the area.
- [8]Section 105B provides that applications for an adult entertainment permit must be accompanied by the written consent of the local government for the area in which the relevant premises are located. The local government may also abstain, in writing, consenting to the application under section 105B(4).
- [9]Section 107D provides the Commissioner may grant an adult entertainment permit only if he or she is satisfied that:
- (a)the applicant is a suitable person to provide adult entertainment at the premises;
- (b)the combined total of licensed brothels and adult entertainment venues in the locality would not substantially affect the character of the locality;
- (c)the approved area conforms with the requirements of section 103Q of the Act; and
- (d)an appropriate management plan is submitted by the applicant.
- (a)
- [10]‘Character’ and ‘locality’ are not defined in s 107D(1)(b). However, an example is provided of the character of locality being substantially affected, namely the locality becoming "a red light district".
- [11]In Hanly & Anor v Chief Executive, Liquor Licensing Division,[1] the Queensland Commercial and Consumer Tribunal considered the extent of the relevant ‘locality’:
The Tribunal considers the word "locality" in the Act takes its meaning from the context in which it appears. In its context in section 107D(1)(b) we consider the word means "in the vicinity" or "the immediate vicinity of the relevant premises". This is because in its context in section 107D(1)(b) the word "locality" is, in our view, intended to refer to a small geographical area rather than a large area such as a "town" or a "city".
- [12]In Bad Girls Maroochy Pty Ltd v Chief Executive of Department of Tourism, Racing & Fair Trading,[2] MacKenzie J considered the meaning of the term ‘character’:
At any relevant point in time … the nature and appearance of physical features of the locality and the nature of activities carried on by people in it are components of the character of the locality.
- [13]Section 117 requires the Commissioner to advise the local government and police district officer for the locality to which the adult entertainment permit application relates and allow them an opportunity to comment on the application. The local government or police district officer may comment on the reasonable requirements of the public in the locality, or object on the grounds that the amenity, quiet or good order of the locality would be lessened.
- [14]Section 119 provides that a member of the public may object in any circumstances where an application must be advertised under s 118. Section 119(4) sets out the grounds of objection to an adult entertainment permit application:
- (a)undue annoyance, disturbance or inconvenience to persons who reside, work or do business in the locality or travel to/from facilities regularly frequented by children for cultural or recreational activities;
- (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 amenity of the community.
- (a)
- [15]‘Amenity’, of a community or locality, is defined in s 4 to mean:
- (a)the atmosphere, ambience, character and pleasantness of the community or locality; and
- (b)the health and safety of persons who live in, work in or visit the community or locality and the comfort or enjoyment they derive from the community or locality.
- [16]In Fine Fidelity & Ors v Commissioner of Liquor and Gaming & LA Showgirls Pty Ltd,[3] Members Howard and Paratz considered the term ‘community’:
Community is a broader concept than locality. It may, in an appropriate case, encompass the perceptions of residents about their community, although ultimately little weight, if any, may be accorded to purely subjective feelings.
- [17]The listed grounds for objection for adult entertainment permit applications contained under section 119(4) of the Act are distinct from the grounds to object to other applications contained under section 119(3) of the Act. The distinction is the exclusion of the word ‘offence’ from the grounds to object to adult entertainment permit applications. In the LA Showgirls case,[4] the Tribunal found that the exclusion of the word ‘offence’ provided an indication from Parliament that that amenity considerations may not include concerns on moral grounds where an application for an adult entertainment permit is concerned.
- [18]In deciding whether to grant an application, the Commissioner must have regard to the matters set out in s 121. For an adult entertainment permit, the relevant matters are:
- (a)the objections made to the grant of the application;
- (b)comments from the local government;
- (c)comments from the police district officer;
- (d)the impact on the amenity of the community concerned.
- (a)
- [19]After considering the relevant matters in s 121, the Commissioner must either grant or refuse the application.
- [20]Pursuant to section 103P(2), any adult entertainment permit which is granted is subject to the Liquor Act and the conditions prescribed under the Liquor Regulation or imposed by the Commissioner.
- [21]The conditions that each adult permit is subject to are prescribed under r 29 of the Liquor Regulation as follows:
- (a)The permittee must comply with the management plan submitted by the permittee with the application for the permit;
- (b)The permittee must keep a daily record of the name of the controller for the permittee's premises and the controller's hours of duty;
- (c)The permittee must enter the controller's name and hours of duty into the daily record on every day on which adult entertainment may be performed under the permit;
- (d)The permittee must ensure that spruiking or touting for business involving adult entertainment occurs only on the permittee's premises and only on parts of the premises from which the spruiking or touting is not audible or visible to a person who is not on the premises; and
- (e)The permit does not authorise adult entertainment on Christmas Day or Good Friday.
- (a)
Objections by Mr Giridon and Ms Sheehy
- [22]On 19 June 2017, Mr Giridon objected to the application by letter in the following terms:
I am aware of an application for an Adult Entertainment permit with extended trading hours that has been lodged by Belle Meade Pty Ltd for one of the retail lots (Zuri Lounge) underneath our apartments. I strongly object to the application on the following grounds:
- 1.The granting of an adult entertainment permit with extended trading hours will cause undue annoyance, disturbance or inconvenience to me and others who reside in the Sun Apartments· directly above the Zuri Lounge to which the permit is sought.
- The granting of a permit will undoubtedly increase (given our decade long experience from residing in the area) harm from alcohol abuse and consequently increase the incidence associated violence.
The residential building entrance is only two (2) metres away from the entry point to the proposed Adult Entertainment venue. There is a strong likelihood that persons attending the premises for which the permit is sought (the adult entertainment venue) will undoubtedly come in close and direct contact with owners, tenants, their children and the families of our apartments on a regular basis, increasing the likelihood of incidents, violence, alcohol fuelled and other undesirable behaviour.
There is a strong likelihood that many persons attending the premises to which the permit relates will be adversely affected by the consumption of alcohol. It is submitted that the persons likely to attend the premises for which the permit is sought will be attending the premises for reasons very different to those which the venue is currently used and, has been used for over a decade, without issues arising, namely a restaurant and bar.
- 3.If the permit is granted it will cause an adverse effect on the health and/or safety of members of the public. The proposed venue's likely patrons will undoubtedly and overwhelmingly include large groups of men, generally intoxicated and, whose behaviour will not be consistent with promoting the quiet enjoyment the residents and their families, including young children and teenagers have enjoyed and currently enjoy.
- [23]Ms Sheehy signed a petition in the following terms:
- 1.An adult entertainment permit with extended trading hours will cause undue annoyance, disturbance or inconvenience to residents of Sun Apartments, located in the same building as, and directly above, the Zuri Lounge, the venue for which the permit is sought.
- 2.There is likely to be harm to Sun Apartments residents from alcohol abuse and misuse and associated violence. The entry point for the premises to which the permit is sought is only two (2) metres away from the entry point to the apartments. There is a strong likelihood that residents and visitors to Sun Apartments will come into direct contact with patrons who are adversely affected by liquor and in many instances will comprise of groups of men, who are likely to display aggressive group behaviours.
- 3.Persons likely to attend the premises to which the permit sought relates will be attending the premises for reasons very different to that which the premises currently promotes (a restaurant and bar).
- 4.If the permit is granted there will be an adverse effect on the amenity of the community of Sun Apartments and surrounding community, not limited to residential premises but also premises conducting various forms of business. Within Sun Apartments there are many families who have young children and many residents are young and single, working hours that necessarily bring them into contact with visitors to the area late at night and early in the morning, and otherwise going to and from the building at times when the venue will be in operation. The adverse issues that are likely to arise with a change to the nature of the permit for the venue will necessarily and significantly reduce the safety many residents consider they enjoy currently.
- [24]I note that there were a total of eight public objections, and one petition with 25 signatures.
Comments by Brisbane City Council
- [25]On 1 June 2017, the Brisbane City Council (‘the BCC’) advised that it abstained from consenting to the application pursuant to s 105B(4).
- [26]However, on 21 July 2017, the BCC provided the following further advice:
Council does not object to the granting of the application/permit provided the applicant can prove it is in accordance with accepted development …
It is acknowledged that this application seeks for an adult entertainment permit within the Brisbane City Council area …
It is noted that the subject site is located in Principal Centre (City Centre) Zone and the Fortitude Valley Neighbourhood Plan (NPP-002). In accordance with the current Planning Scheme (City Plan 2014) Part 5 Table of assessment, the use of Nightclub entertainment facility within Principal Centre (City Centre) Zone is considered assessment if no greater than the number of storeys (except where within the city centre neighbourhood plan area).
However, the subject site is located within the Fortitude Valley Neighbourhood Plan and City Centre. Therefore, Nightclub entertainment facility is considered accepted development, subject to compliance with identified requirements (eg if involving an existing premises). In this instead (sic), the neighbourhood plan prevails.
Therefore, no objections if this request involves the following requirements:
- an existing premises within Special Entertainment Area (SEA);
- gross floor area is no greater than 100 sqm for any part of the licence of the premises;
- not located in the same building as, or within 5 m from a residential use; and
- where complying with all self-assessment acceptable outcomes in Section A of the Centre or mixed use code.
Section 107D restrictions
- [27]No issue has been raised in relation to the suitability of Belle Meade for the purposes of s 107D(1)(a).
- [28]However, issue has been raised in relation to whether, if the application were granted, the combined total of licenced brothels and adult entertainment venues in the locality would substantially affect the character of the locality for the purposes of s 107D(1)(b).
- [29]I am satisfied that the Fortitude Valley Safe Nights Precinct is the relevant locality. Safe night precincts are established under Part 6AB of the Liquor Act. Section 173NC provides that a regulation may prescribe an area that has a concentration of licensed premises to be a safe night precinct. It appears that the Fortitude Valley Safe Night Precinct is an area distinct from other areas by virtue of its concentration of licensed premises.
- [30]I note that, at the hearing, Ms Sheehy and Mr Giribon contended that the relevant locality was the Sun Apartments Building or, alternatively, a 20 metre radius from that building. While cases such as Hanly (referred to above) indicate that a locality is a ‘small geographic area’, s 107D(1)(b) nevertheless refers to ‘the locality in which the relevant premises are situated’. This clearly indicates that the word locality is intended to refer to an area which extends beyond the relevant premises. On Ms Sheehy and Mr Giribon’s construction, each building in a street would comprise its own locality or, alternatively, there would be a series of overlapping localities for buildings within 20 metres of each other. I do not consider that such a construction would achieve the purpose of the provision as required by s 14A of the Acts Interpretation Act 1954 (Qld).
- [31]The evidence before me is that there are four licenced adult entertainment venues within a 300 metre radius of the Sun Apartments Building. The police district officer advised that there are no licensed brothels within close proximity of the building.
- [32]In respect of the character of the Fortitude Valley Safe Night Precinct, Ms Sheehy and Mr Giribon have contended that the grant of the adult entertainment permit would cause the character of the locality to revert to being a “red light district”.
- [33]It is apparent the locality already supports significant public, commercial and residential uses with multiple late night trading premises and adult entertainment venues. I am not satisfied that it would become a red light district because of the grant of a fifth adult entertainment permit to Belle Meade. As set out above, s 103Q requires that adult entertainment is only permitted to be conducted inside licenced premises in areas that can be fully enclosed in a way that prevents a person outside the area from seeing inside the area.
- [34]Having regard to these matters, I am not satisfied that there will be any significant effect on ‘the nature and appearance of physical features of the locality and the nature of activities carried on by people’ (to adopt the words of MacKenzie J in the Bad Girls Maroochy case) as a result of the grant of the adult entertainment permit.
Section 121 considerations
- [35]I turn to considering the relevant matters set out in s 121(1), namely paragraphs (b), (c), (d) and (f).
- [36]I note that Ms Sheehy has contended that I should also have regard to s 121(1)(h), which provides that regard must be had to:
any relevant conditions imposed on a development approval, given by a local government under the Planning Act, that relates to premises the subject of the application.
- [37]However, there is no development approval contained in the bundle of relevant documents, which comprises the evidence before me.
Objections made to the grant of the application
- [38]Eight public objections were made and one petition with 25 signatures.
- [39]The terms of the objections (set out above) include:
- (a)undue annoyance, disturbance and inconvenience to the residents of the Sun Apartments Building directly above the adult entertainment permit premises; and
- (b)strong likelihood that persons attending the premises for which the adult entertainment permit is sought will come in close contact with owners, tenants, their children and the families of the Sun Apartments Building on a regular basis, increasing the likelihood of incidents, violence, alcohol fuelled and other undesirable behaviour.
- (a)
- [40]A ‘Character/Amenity Assessment’ dated 31 July 2017 prepared for the Commissioner includes the following comments:
OLGR is responsible for enforcing 25 AEP [adult entertainment permit] venues throughout the State. Since the inception of the legislation in 2001 there has been no evidence to suggest adult entertainment venues or their patrons have adversely impacted their surrounding communities. AEP venues are generally associated with lower levels of alcohol related violence, crime and drugs mainly due to higher requirements for security and controllers are required to supervise adult entertainment, which tends to subdue patron activity …
The applicant is obliged to engage crowd controllers to maintain order in and around the licensed premises. It is reasonable to infer the presence of crowd controllers located immediately outside the main entrance will moderate any disruptive behaviour of unruly patrons and prevent any annoyance, disturbance or inconvenience to residents using the residential apartment entrance.
- [41]It is important to note that the premises previously operated under the authority of a commercial hotel licence.
- [42]While the assertions made by Ms Sheehy, Mr Giribon and the other objectors are understandable, they are not supported by evidence. I am not satisfied, on the basis of the material before me, that there is strong likelihood of increased unwanted interactions and violent incidents as a result of the adult entertainment permit. Therefore, the objection is not made out.
- [43]Insofar as the objections relate to an adverse effect on the amenity of the community, I will consider them under a separate hearing below.
Comments of the local government
- [44]At the hearing, Ms Sheehy and Mr Giribon contended that the letter from the Brisbane City Council dated 21 July 2017 should be construed as an objection to the grant of the adult entertainment permit.
- [45]The wording of the letter from the Council is unhelpful, in that it starts with ‘Council does not object’ and then proceeds to make that position conditional on a number of requirements being satisfied with reference to ‘Nightclub entertainment facility’.
- [46]Belle Meade referred me to a letter from the Council dated 4 April 2017. This letter states that:
It is confirmed that the subject site has an appropriate planning permit for the existing use (Hotel) to be carried out on the site subject to compliance of the relevant conditions in the approval.
- [47]It would therefore appear that the Council’s comments in relation to Nightclub entertainment facility are misconceived, in circumstances where the existing use is as a Hotel.
- [48]Nevertheless, I consider that the letter dated 21 July 2017 evinces a concern on the part of the Council in relation to the grant of adult entertainment permits in respect of premises located in the same building or within five metres of a residential use. I regard those concerns as relating to the reasonable requirements of the public in the locality.
- [49]I am satisfied that the Council’s concerns can be addressed by imposing additional conditions on the adult entertainment permit under s 103P, and that the concerns do not require the refusal of the adult entertainment permit.
- [50]The photographs of the premises in evidence before me, which were taken before the adult entertainment permit was granted, show signage for the Zuri Lounge under the awning over the entrance, but not elsewhere. In particular, there is no signage in the windows. Given that the premises are located in a residential building, I consider it appropriate to impose the following condition to limit the scope of exterior signage to that in existence prior to the granting of the adult entertainment permit:
All treatments to the exterior windows of the premises, other than those windows under the entrance awning, must be plain and in keeping with the colour scheme of the building. In particular, such treatments must not include letters, numerals, photographs, graphical representations or a logo.
- [51]At the hearing, Mr Steele submitted that the imposition of such a condition would necessitate a change to the window treatments, at some cost to Belle Meade. However, this is not a matter I can have regard to under s 33(1)(a), as it is not evidence which was before the Commissioner when the decision was made.
- [52]The evidence before me is that the entrances of the Sun Apartments Building and the Zuri Lounge are eight metres apart. In these circumstances, and having regard to terms of the Council’s letter dated 21 July 2017, I consider it appropriate to impose the following condition:
The permittee must ensure that soliciting (in any form) for its business does not occur within five (5) metres of the residential entrance to the Sun Apartments Building.
- [53]I am not persuaded that a broader condition should be imposed, on the basis that such a condition would not in any event prohibit other adult entertainment permittees in the locality from soliciting (other than spruiking or touting) for business in the vicinity of the Sun Apartments Building.
Comments of the police district officer
- [54]The police district officer advised the Commissioner that there were “no grounds to object to the application and no adverse findings have been identified regarding the nominated persons”.
Impact on the amenity of the community
- [55]I am satisfied that the relevant community includes residents, business owners and other members of the public who work in or visit the locality. I acknowledge that residents include families who may have young children.
- [56]For the reasons already provided, I am not satisfied that an adult entertainment permit, particularly with the additional conditions identified above, will fundamentally change the atmosphere, ambience, character and pleasantness of the Fortitude Valley Safe Night Precinct.
- [57]Therefore, I am not satisfied that the objections relating to s 119(4)(d), and a general consideration of the impact on the amenity of the community, warrants the refusal of the adult entertainment permit.
Conclusions
- [58]I am satisfied that the general procedural requirements for the application have been met or followed.
- [59]Having considered the relevant matters, I am satisfied that the granting of the adult entertainment permit on the conditions imposed by the Commissioner, together with the additional conditions identified above, is in accordance with the Liquor Act. I make orders amending the decision of the Commissioner to impose those additional conditions.