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- Unreported Judgment
Scally v Commissioner for Liquor and Gaming QCAT 387
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Scally v Commissioner for Liquor and Gaming & Anor  QCAT 387
Commissioner for Liquor and Gaming
GBBC PTY LTD
General administrative review matters
19 December 2019
3 December 2019
GAMING AND LIQUOR – ADMINISTRATION – LIQUOR LICENSING – APPLICATION FOR A LICENCE – GENERALLY – where application for a commercial hotel licence – where applicant failed to provide an accurate and full community impact statement – where applicant failed to undertake all required community consultation – whether local community area appropriately delineated – whether licence should be refused
Liquor Act 1992 (Qld), s 3, s 42A, s 116, s 121
Butler & Ors v Commissioner for Liquor and Gaming (No 2)  QCAT 428
Staddon and Ors v Chief Executive, Department of Employment, Economic Development and Innovation and Anor  QCAT 258
APPEARANCES & REPRESENTATION:
JB Stevenson & Co
AK Herbert instructed by Hopgood Ganim Lawyers
REASONS FOR DECISION
- This is a review by the Tribunal of a decision made by Commissioner for Liquor and Gaming to issue a provisional commercial hotel licence to GBBC Pty Ltd (‘GBBC’) for 26-28 Helen Street Teneriffe.
- The building is said to be an old warehouse. It has large roller doors opening on to Helen Street. For several years it has been used by GBBC to run a venue known as Green Beacon Brewing Company: a micro-brewery where GBBC sells beer that it produces on site, plus a few varieties of wine. Food is available. There are tables and chairs where patrons can sit to eat, drink and socialise. The venue has operated under a producer / wholesaler licence since 2012, two ‘satellite cellar door’ licences (for the sale of wine) since 2013, and a ‘subsidiary on premises catering’ licence since 2017.
- On 29 June 2018, GBBC applied to the Commissioner for a commercial hotel licence for the premises. A commercial hotel licence would allow GBBC to sell all types of alcohol. According to the community impact statement, the purpose of the proposed licence change was ‘to provide a higher quality of restaurant and bar offering … while accommodating an onsite production brewery area’. The premises would include a commercial kitchen, dining area and function area. There would be a reconfiguration of the space within the building, and the addition of a mezzanine level. This would increase the seating capacity to some 165 to 185 patrons. (The current capacity does not appear to be stated in the material, but it is undisputed that the proposal involves an increase). There is no on-site parking currently, or proposed. GBBC intended to surrender the existing licences other than the producer / wholesaler licence if the commercial hotel licence was granted.
- After receiving the application, the Commissioner sought additional information from GBBC. There was then an advertising and objection period. The only objection lodged within the objection period was by Dr Peter Scally. He lives in Helen Street. His objection focussed on noise. He also raised other issues: for example about delivery vans double-parking, and about patrons smoking and drinking in the street. There was also a later objection by a couple who live in Helen Street, but it was lodged out of time.
- On 18 December 2018 the Commissioner provisionally granted a commercial hotel licence, subject to various conditions. These included a condition that noise emanating from the premises must not exceed a specified level. (I am informed that this is equivalent to the noise permitted at restaurants). Other conditions included that certain windows are to be kept shut during certain hours (for noise containment), that staff must contact taxi services for patrons until all patrons have dispersed, and that signage is to be prominently displayed reminding patrons to be mindful of neighbours when leaving the premises.
- On 18 March 2019 Dr Scally applied to the Tribunal for a review of the Commissioner’s decision.
The Tribunal proceeding
- The Commissioner filed a statement of reasons on 17 June 2019.
- The matter proceeded to a hearing on 3 December 2019. The evidence consisted of a bundle of documents provided by the Commissioner and numbered pages 1-504 and 507-542. I allowed pages 507-542 as ‘new evidence’ under section 34 of the Liquor Act 1992 (Qld) (‘Liquor Act’). The lawyers made oral submissions to supplement their written submissions. There was not enough time for oral submissions in reply on behalf of Dr Scally by his lawyer, Mr Carr of JB Stevenson and Company, so Mr Carr filed submissions in writing on 10 December 2019.
- The main purposes of the Liquor Act are set out in section 3 of the Act. They include regulating the liquor industry and areas in the vicinity of licensed premises, minimising harm from alcohol misuse and associated violence, and minimising adverse effects on the amenity of the community. Another main purpose is facilitating the maximum development of the liquor industry having regard to the welfare, needs and interests of the community.
- Part 5 of the Act deals with licence applications and grants. An application for a commercial hotel licence (and certain other types of application) must be accompanied by a ‘community impact statement’. The statement must address a number of topics including demographic trends, the number of persons residing in the locality and their expectations, and the likely health and social impacts that granting the application would have on the population of the locality. In preparing a community impact statement, ‘the applicant must have regard to relevant guidelines issued by the commissioner’.
- In deciding whether to grant an application, the Commissioner must have regard to a number of matters under section 121 of the Act. Relevantly, these include the matters mentioned in section 116(8), the public interest in so far as it relates to certain main purposes of the Act about minimising harm and minimising adverse effects on amenity, and the impact on the amenity of the community concerned.
- In Staddon and Ors v Chief Executive, Department of Employment, Economic Development and Innovation and Anor, the Tribunal observed that the Liquor Act does not contemplate that there will be no impact of a licence on amenity, but simply that the impact is minimised.
- In a review, the Tribunal must conduct a fresh hearing on the merits, and reach the correct and preferable decision.
Community impact statement guideline
- The Commissioner’s power to issue guidelines is contained in section 42A of the Liquor Act. That section indicates that such guidelines are to inform people, amongst other things, about how the Commissioner administers the Act.
- The Commissioner’s guideline on community impact statements under section 116 of the Liquor Act is Guideline 38. The guideline is detailed and extensive, but the following summary provides an overview. The guideline indicates that a ‘full’ rather than a ‘standard’ community impact statement is required for an application for a commercial hotel licence (and for certain other types of licence). The community impact statement must contain a delineation of the ‘local community area’. It must contain a social profile of the local community area, using published demographic data and supplementary information. It must assess community risk using demographic data in a scoring system to determine whether the local community area is ‘high-risk’. It must consider the likely health and social impacts of the proposal, both positive and negative. Topics to be addressed include the nature and type of facilities to be provided, noise, traffic, litter, vandalism, safety issues arising from public drunkenness, employment generation, and benefits for tourists and visitors. The community impact statement must also contain:
- (a)‘Consultation with residents and businesses within 200 metres of the site’;
- (b)‘Consultation via a survey with residents in the Local Community Area’; and
- (c)‘Consultation with key advisers’.
- In relation to consultation with residents and businesses within 200 metres, the guideline explains:
Community consultation forms an essential part of community impact statements. The onus is not on the community to organise and present their opposition, but rather, it rests on the applicant to at least demonstrate that efforts have been made to assess community views on the proposal. …
Applicants will have to demonstrate consultation with the immediate adjoining residents and businesses or those in close proximity (i.e. 200 metres) who are likely to have issues of noise, traffic or other effects on lifestyle amenity.
- In relation to the survey requirement, the guideline says that a survey for a site in a major city or town must involve a minimum of 100 local community members. The guideline says that the interviewer and the survey instruments must ‘maintain objectivity and neutrality with respect to the proposal’, and demonstrate in the community impact statement how this was done.
- In relation to the requirement for consultation with key advisers, the guideline explains that there must be a minimum of eight interviews with community advisers. It discusses what sort of advisers may be relevant and what information about the consultation must be shown in the community impact statement.
The community impact statement provided with GBBC’s application
- The undated community impact statement was prepared by a ‘liquor professionals’ firm that acted as GBBC’s agent in making the application for the commercial hotel licence. No individual author is disclosed.
- The statement delineates the local community area as comprising the census collection districts of Newstead-Bowen Hills, New Farm and Fortitude Valley. That area includes not only Teneriffe, but also surrounding suburbs.
- The statement includes detailed historical and demographic information about the specified local community area. When the scoring system was applied, it showed that the area is not ‘high-risk’.
- In relation to noise, the statement indicates that the proposed noise conditions would ensure that there are no ‘additional amenity impacts’ from noise, and continues:
… the venue is located [primarily] in a mixed-use area, consisting primarily of commercial properties. The closest freestanding residential houses are located approximately 160 [metres] from the venue with no direct line-of [sight] to the premises.
- An accompanying diagram draws a line from the venue to a house on the far side of Commercial Road, apparently well-insulated from the venue.
- However, there is no mention in the community impact statement of the apartment buildings in much closer proximity to the venue. A plan that is in the material before the Tribunal (attached to an acoustic report obtained by GBBC), but not in the community impact statement, shows four identified nearby apartment buildings in Helen Street, and two behind, facing Wyandra Street. Whether there are other apartment buildings within 200 metres is not clear.
- The community impact statement wrongly describes the premises as being part of a ‘designated entertainment precinct’, and wrongly describes the proposed hotel as providing, amongst other things, a nightclub and karaoke.
- The section about the impact on traffic starts with the entirely erroneous comment that ‘the site is located on the corner of Wickham Street and Duncan Street’. That site is in the heart of Fortitude Valley, and not in Teneriffe at all. It is not apparent whether the discussion about traffic that follows relates to the GBBC site. It probably relates to the Fortitude Valley site as it refers to the ‘parking options throughout the Valley’.
- The discussion under the headings ‘Impact on vandalism, litter, criminal acts & crimes of violence’ and ‘Litter’ comprises only two paragraphs. The first paragraph starts with the endorsement that ‘Green Beacon Brewing Co aims to provide an exclusive standard of service and facilities for patrons and their guests’.
- In a section headed ‘Report Methodology’, it is said that one of the sources of information was ‘speaking with members of the community in the area’, but no details are given about such conversations. There are headings ‘Consultation with key community advisers’ and ‘Community consultation – residents and businesses’, but the discussion under those headings is limited to the repeated comment that ‘Survey consultation is not required by the Liquor [Act] 1992’.
- It is therefore not apparent that the author consulted any residents and businesses within 200 metres of the site. It is clear that the author declined to undertake the process required by Guideline 38 for ‘consultation via a survey with residents in the Local Community Area’, and it seems that the author also declined to undertake ‘consultation with key advisers’. If any key advisers were consulted, their names and qualifications or professional positions have not been included in the community impact statement, contrary to a requirement of Guideline 38.
- I infer that the author of the community impact statement declined to undertake most if not all of the community consultation required by Guideline 38.
- The community impact statement concludes with a summary highlighting the benefits of the proposal. No negative impacts are identified in the conclusion, consistent with the approach in the statement that potentially negative impacts can be adequately managed.
Authorship and whether neutral
- Mr Carr for Dr Scally observes that no individual author of the community impact statement is identified, and so it is unknown what relevant experience, training or skills the author may possess. Mr Carr submits that a report written by someone without any known professional ethical obligations to be truthful and frank should be treated with great caution.
- In response, the respondents note that there are no requirements in the legislation or guideline for the author of the community impact statement to have particular qualifications or attributes. That is correct. There is, for example, no requirement to engage a social researcher, or for the author to adhere to an ethical code, or for the author to take on the responsibilities of an expert witness. However, the reliability of a report could be better evaluated if it identified the author and their qualifications.
- It was said by the Tribunal in Staddon and Ors v Chief Executive, Department of Employment, Economic Development and Innovation and Anor:
There is nothing in the legislation that requires the community impact statement to comply with any standard save that it addresses the matters in s 116(8) and that it is objective and neutral.
- Mr Herbert for GBBC submits that the preparation of a community impact statement necessarily involves a number of subjective judgments. Given the place of the community impact statement in the legislative scheme, Mr Herbert submits, it must be intended to be a form of advocacy for the proposal.
- Consistent with the latter point, I note that the language of section 116(9) envisages a community impact statement being prepared by ‘the applicant’. I am not aware of anything in the legislation that requires objectivity and neutrality. There is the reference (earlier quoted) in Guideline 38 to a need for objectivity and neutrality in conducting the survey. The Guideline does not elsewhere mention a need for such detachment, but perhaps it was thought that it would go without saying.
- In any event, a lack of objectivity and neutrality will detract from the weight that can be placed on a community impact statement. In the present case, the community impact statement was markedly partisan. It portrayed the hotel proposal as entirely positive, without undertaking the required community consultation in the nearby area to discover whether there were downsides from the perspective of residents. Indeed, it failed to even acknowledge the existence of apartment dwellers in Helen and Wyandra Streets.
Delineation of the local community area
- Mr Carr for Dr Scally argues that the local community area selected by the author of GBBC’s community impact statement, taking in not only Teneriffe but also Newstead, Bowen Hills, Fortitude Valley and New Farm, is far too large. This, he argues, serves to gloss over impacts on residents living near the venue.
- Mr Robinson for the Commissioner points out that the ‘locality’ seen as relevant by the Tribunal in the 2013 case that reviewed the grant of GBBC’s producer / wholesaler licence was confined to part of Teneriffe.
- In my view, the ‘local community area’ delineated in the 2018 community impact statement is much too broad to be fairly described as the ‘community most affected by the application’. This has practical implications. It affects what census data is used in determining whether the area is ‘high-risk’ (though I acknowledge that in this case, where Teneriffe is a particularly affluent area, it is very unlikely that a more confined area would have produced a higher risk rating). It results in lengthy irrelevant discussions about surrounding suburbs. It can result, as it did in this case, in a list of other licences in the area that is so long and mostly so little connected to the neighbourhood of the proposed hotel as to be unhelpful.
- The selection of an overly-large ‘local community area’ detracts from the usefulness of the community impact statement in this case.
Lack of community consultation
- The author of the community impact statement purported to exempt himself or herself from the requirements to survey local residents and businesses and, it seems, from the requirement to consult key advisers and nearby residents and businesses.
- There is no express requirement in the Liquor Act for such consultation, but there is in Guideline 38. The requirements about community consultation in Guideline 38 are appropriate means for obtaining information about matters listed under section 116(8) of the Liquor Act such as the expectations of residents and the health and social impacts of a proposal.
- Mr Herbert for GBBC argues that a guideline is meant to inform, but it does not create legal requirements. Guideline 38 should not be treated as legislative. In any event, section 116(9) merely requires the author of a community impact statement to ‘have regard’ to a guideline, rather than slavish observance. Failure to follow steps set out in Guideline 38 does not preclude the grant of the licence sought, Mr Herbert submits. Rather, the question is whether the Commissioner, or in turn the Tribunal, has sufficient information to make a decision under section 121 of the Liquor Act.
- I accept Mr Herbert’s submission that Guideline 38 does not have the status of subordinate legislation, and that the critical question is whether the Tribunal has sufficient information to make a proper decision under section 121 despite any gaps in the community impact statement. On the other hand, it is appropriate to afford weight to the published view of the Commissioner, as regulator of the liquor industry in Queensland, in Guideline 38 about what is expected in a community impact statement for a commercial hotel licence. The guideline envisages an intensive and rigorous community consultation process, reflecting the potentially significant social impacts of liquor licences.
Does the Tribunal have sufficient information to make a decision under section 121?
- The respondents submit that there is sufficient information, such that any gaps in the community impact statement are of no consequence.
- The respondents point to the fact that the Office of Liquor and Gaming Regulation consulted with the police and the Brisbane City Council, and neither objected to the proposal. The Office of Liquor and Gaming Regulation also notified relevant members of Parliament about the application. There was only one person, Dr Scally, who objected within the permitted time despite the required advertising.
- The respondents also note that there has been no proposal or approval for amplified music. An acoustic report was provided with the application. There is a standard noise condition attached to the licence grant which can be monitored and enforced. There have been many noise complaints in the past about the venue, many of them by Dr Scally. However, despite investigation by the Office of Liquor and Gaming Regulation, none of those complaints has been substantiated.
- Further, the respondents argue, increasing the seating capacity will not automatically lead to increases in the number of patrons. There is no reason to suppose that the noise levels emanating from within the building envelope would increase if there were more patrons. The proposal for a hotel at the premises was the subject of a town planning application to Brisbane City Council for a material change of use at about the same time as the liquor licence application. That process involved advertising and calling for objections. The Council had approved the change in August 2018, subject to conditions. Amenity issues such as traffic and noise would have been considered in that process.
- It is also significant, the respondents contend, that GBBC has conducted a licensed venue from these premises for a number of years, and those licences would remain in place if the commercial hotel licence were refused. The proposal represents what Mr Herbert for GBBC terms a ‘limited increase in activity on this site’.
- Further, the respondents contend, the Office of Liquor and Gaming Regulation undertook a community impact assessment. That assessment was independent and professional.
- Mr Herbert for GBBC also submits that consulting local residents would merely gather their views on whether they favoured the proposal. What is truly important, he submits, is the reality of any impact.
- There is force in many of these submissions. However, there are some points which, in my view, require qualification.
- It is true that the proposed increase in seating capacity does not itself mean there will be an increased number of patrons, but if the hotel is successful it is probable that there will be times, perhaps many occasions, when the number of patrons is at capacity.
- Even if it is correct to characterise the transition to a commercial hotel as a limited increase to activity on the site, it would be concerning if a staged manner of obtaining a commercial hotel licence could sidestep the scrutiny of a full community impact statement merely because the final step was incremental. There is no suggestion that a full community impact statement was required for any of the earlier licence applications by GBBC.
- On the issue of whether community consultation would elicit useful information, I note that Guideline 38 suggests a mixture of open and closed questions for the required survey. This is designed to bring out information beyond mere assent or dissent to a proposal.
- While I accept that the material change of use process would have considered traffic and other issues, there is no indication that it included an intensive and proactive community consultation process of the type envisaged under Guideline 38. In any event, the fact that traffic impacts would have been considered in the material change of use application does not render them irrelevant in a liquor licence application.
- The fact that there was only one objection within the allowed time is of significance, but that significance is tempered by two factors. First, the objection period was not preceded by the rigorous community consultation process envisaged under Guideline 38. Had that been undertaken, there may have been more objections. Second, the advertising and objection period was shortened to only two weeks from the standard four weeks at the request of GBBC’s agent. In an affluent area such as Teneriffe, that may have had a heightened effect because of the likely mobility of an affluent population. The couple who objected late indicated that their objection was late because they found out about the proposal only after returning from an overseas trip.
- The fact that numerous previous noise complaints were unsubstantiated does not necessarily mean that nearby residents’ claimed concerns about noise were baseless and vexatious. An examination of the investigation records suggests that there have been some difficulties with accurately measuring noise levels, and instances where noise impacts may have been ameliorated by the closing of roller doors or plastic blinds before inspectors arrived. Further, some complaints related to loud conversations and farewells by departing patrons in the street late at night, which is a separate matter from noise emanating from the premises themselves.
- The community impact assessment report of the Office of Liquor and Gaming Regulation discussed the concerns of objectors but it did not include other forms of community consultation. Concerns voiced by objectors, as outlined in that report, included noise, nuisance from the presence of more patrons, extra pressure on parking, and the premises continuing to attract large uninvited ‘booze buses’ that engage in double-parking.
- Of course, some impacts can be addressed through licence conditions. For example, the problem of noisy conversations in the street late at night can be addressed through a condition for signage urging mindfulness of neighbours. Such a condition has been in place at the venue since 2012, and is included in the conditions attached to the commercial hotel licence. However, it would be fanciful to imagine that such a condition can be 100% effective. How effective the existing condition has been could have been gauged through the community consultation process required by Guideline 38. It would also be necessary, of course, for the author to consider the potential for increased rowdiness that might result from larger crowds at a hotel, and from groups leaving celebratory functions late at night.
- Whether a community consultation process would elicit a great deal of valuable information, and how much of that information would tend to favour the proposal and how much would tend against it, are all unknowns. There is power to waive the requirement for a community impact statement where, for example, the purpose of the community impact statement has been achieved by other means or the application does not involve a significant change. In this case, while the material change of use process would have covered some of the same topics, it had no equivalent intensive community consultation process. The change proposed is significant. Therefore, there would be no proper basis in this case to waive the requirement. On the contrary, it is a type of proposal that warrants rigorous community consultation in the preparation of a full and balanced community impact statement. The proposal is to insert a hotel into what seems to be a vibrant, densely-populated mixed use area with limited parking and a history of concerns from several surrounding residents about the existing smaller-scale operation. Whether, on balance, a commercial hotel licence should be granted requires careful consideration of a range of information from a variety of sources, including information that would be explored and analysed in a community impact statement compliant with Guideline 38.
- The community impact statement that GBBC provided was deficient in many respects, as discussed in these reasons, but most notably in its refusal to undertake the intensive community consultation required by Guideline 38. In the absence of an accurate and full community impact statement, there is insufficient information about the impacts on amenity. The experiences and views of local residents and businesses, and of key advisers, are largely unknown and unanalysed. There is insufficient information to make a properly-informed decision under section 121 of the Liquor Act.
- Mr Carr for Dr Scally raised a number of other issues. These included contentions that the licence had been granted in respect of 26 and 28 Helen Street when the application had specified only number 26; that the ‘risk assessed management plan’ was inadequate; and that there was no proof that the application had been advertised for the full 14 day period that had been required.
- In light of my findings about the inadequacy of the community impact statement, I do not need to resolve these other issues.
What should be the outcome of the review?
- One option is to set aside the Commissioner’s decision and to return the matter to the Commissioner for reconsideration with a direction that the Commissioner require a further community impact statement before making a fresh decision on the licence application. This would save GBBC the cost of a further licence application fee. The fact that the Office of Liquor and Gaming Regulation allowed, apparently without question, the licence application to proceed without a compliant community impact statement adds some attraction to that approach.
- The other, and in my view preferable, option, is to set aside the Commissioner’s decision and to substitute a decision refusing the licence application. That would mean that GBBC, if it wishes to pursue its objective of obtaining a commercial hotel licence, would need to lodge a fresh application and pay a new application fee. Given that it was the conscious choice of GBBC’s agent to produce a curtailed community impact statement for the 2018 application, and given the administrative costs for Office of Liquor and Gaming Regulation that would be involved in processing a licence application, I see no reason why GBBC should be relieved of the burden of a further application fee.
- The licence application warranted an accurate and full community impact statement. GBBC failed to provide one. In the circumstances, the proper course is to refuse its application for a commercial hotel licence.
Bundle of documents, 33.
Commissioner for Liquor and Gaming’s statement of reasons, 2.
Submissions on behalf of Dr Scally had been filed on 5 November 2019. Submissions on behalf of each of the respondents had been filed on 19 November 2019.
Liquor Act, s 116.
Ibid, s 116(8).
Ibid, s 116(9).
 QCAT 258, .
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
The copy supplied by the Commissioner (page-numbered 543-557) is undated. The copy on the website of the Office of Liquor and Gaming Regulation is said to have been last updated on 28 September 2015.
Guideline 38, 3.
Bundle of documents, 62.
Guideline 38, 3.
 QCAT 258, .
Guideline 38, 3.
Butler & Ors v Commissioner for Liquor and Gaming (No 2)  QCAT 428, -.
Submissions filed 19 November 2019, .
Liquor Act, s 116(2).
- Published Case Name:
Scally v Commissioner for Liquor and Gaming & Anor
- Shortened Case Name:
Scally v Commissioner for Liquor and Gaming
 QCAT 387
19 Dec 2019