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  4. Reef House Property Pty Ltd v Commissioner for Liquor and Gaming Regulation - [2023] QCAT 389

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Reef House Property Pty Ltd v Commissioner for Liquor and Gaming Regulation[2023] QCAT 389

Reef House Property Pty Ltd v Commissioner for Liquor and Gaming Regulation[2023] QCAT 389

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Reef House Property Pty Ltd & Ors. v Commissioner for Liquor and Gaming Regulation & Anor [2023] QCAT 389

PARTIES:

Reef House Property Pty Ltd

Reef House Resort Pty Ltd

AAPC Properties Ltd t/as Reef House M Gallery

SMAZ Family Trust

Ratcliffe Architecture

Kylie Natasha Ryan

Storywater Pty Ltd t/as Beach Almond

Godwana Resorts Pty Ltd

The Reef House

(applicant/s)

v

Commissioner for Liquor and Gaming Regulation

(First respondent)

MFB PROPERTIES (NQ) PTY LTD

(Second respondent)

APPLICATION NO/S:

GAR081 – 21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

15 September 2023

HEARING DATE:

10 June 2022

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

  1. 1.The Application by Ratcliffe Architecture Pty Ltd for leave to file new evidence in these proceedings is dismissed
  2. 2.The Tribunal orders that the decision of the Commissioner for Liquor & Gaming Regulation made on 23 December 2020 is confirmed.

CATCHWORDS:

GAMING AND LIQUOR – ADMINISTRATION – LIQUOR LICENCING – APPLICATION FOR A LICENCE – GENERALLY – where application for a commercial hotel licence – whether an accurate and full community Impact statement provided – whether applicant undertook community consultation – whether noise management plan required – whether full acoustic report required – whether sufficient information provided to support the application – whether amenity impacted – whether objections properly considered.

Planning Act 2016 Qld), s 83

Liquor Act 1992 (Qld), s 4(2)(d), s 4(3), s 4(4), s 21(1)(a), s 21(d), s 30, s 33, s 34, s 42A, s 116, s 116(7), (8) & (9), s 121, s 123, s 123(1)(c)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 9, s 19, s 20, s 21, s 24

Scally v Commissioner for Liquor and Gaming (2019) QCAT 387

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

APPEARANCES & REPRESENTATION:

 

Applicant:

G Dutton, Solicitor for the Applicants Reef House Property Pty Ltd, Reef House Resort Pty Ltd and The Reef House

Respondent:

K Dixon of Crown Law for the First Respondent

S Walpole of Counsel instructed by S Costello, solicitor of Hickey Lawyers for the Second Respondent

REASONS FOR DECISION

  1. [1]
    The Applicants have commenced proceedings in the Tribunal to set aside the decision of the Commissioner for Liquor and Gaming Regulation (the Commissioner) made on 23 December 2020 to grant a commercial hotel licence and to substitute a decision refusing the license application to MFB Properties (NQ) Pty Ltd. (MFB)
  2. [2]
    The decision of the Commissioner on 23 December 2020 was to provisionally approve the application by MFB for a commercial hotel licence for premises at 95- 97 Williams Esplanade, Palm Cove to commence on 23 December 2020 and to continue until 22 December 2024.
  3. [3]
    The Applicants seek to set aside the decision of the Commissioner on a number of grounds;
    1. the primary ground is that the documents before the Commissioner on which the decision is based do not contain sufficient information to support the decision and that the correct and preferable decision is unavoidably to set aside the original decision and refuse the application;
    2. there are three critical failures (as well as multiple other failures) that conclusively demonstrate the original decision is both untenable and premature to such an extent that the Tribunal should set aside the decision because;
      1. the Community Impact Statement (CIS) is highly deficient and does not comply with the Commissioner’s Guidelines;
      2. the Development Approval from the Cairns Regional Council is subject to a condition requiring a Noise Management Plan which is not otherwise included in the Commissioners documents provided to the Tribunal pursuant to s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). This non-compliance means the development has not commenced as required by s 72(1)(a) of the Planning Act 2016 and the mandatory requirements of s 4(1)(d) of the Liquor Regulation 2002 have been prematurely accepted by the Commissioner as having been established; and
      3. as the patron and entertainment noise from the proposed commercial hotel are critical to the objections lodged in this matter and no relevant noise attenuation building works are proposed, there is no reasonable justification for granting the application without a full acoustic report as required by Guideline 51 and s 4(2)(d) and (4) of the Liquor Regulation 2002.

There are “multiple other failures” relied on by the Applicant and these will be considered after of the above primary grounds and three critical failures have been discussed and decided.

Consolidation of Various Applicants Proceedings.

  1. [4]
    The Applicants in these proceedings have each commenced their own separate individual proceedings in the Tribunal.[1]
  2. [5]
    On 18 May 2021 the Tribunal directed that each of these separate individual proceedings in the Tribunal shall proceed as “GAR081 – 21”. It was further directed that any evidence filed in the review proceedings shall be taken to be evidence filed in GAR081 – 21.
  3. [6]
    On 17 August 2021 the Tribunal made further directions for the consolidation of all the Applicants individual proceedings into GAR081 – 21.
  4. [7]
    Accordingly, the various Applicants have been now included in these proceedings and all claims evidence in GAR081 – 21 will be considered on the basis that it involves all of the individual applicants referred to above. The decision reached by the Tribunal will be a decision in respect of these proceedings but will apply to all of the above applicants and to the respondent in each application.

Background Facts

  1. [8]
    MFB as trustee of the MFB Property Trust are the owners of premises at 95 – 97 Williams Esplanade, Palm Beach, in the State of Queensland. MFB operated a restaurant licence and accommodation facilities at those premises under the business name of Palm Cove Beach Sarayi Hotel. In a subsequent risk assessment report provided to the Office of Liquor and Gaming Regulation in support of the application for a commercial hotel licence the premises were described in these terms:[2]

There are currently 26 rooms in the resort, 8 being 1 bedroom apartments and the other 18 been standard hotel rooms. There are no units/rooms that are strata titled. The apartments, rooms and roof top bar are getting upgraded in the near future.

The rooftop bar is the only one in Palm Cove and has proved an attraction over sometime. A lift to access this bar on the third floor is being installed.

  1. [9]
    MFB applied to the Cairns Regional Council for a material change of use (MCU) for the premises including the rooftop bar.
  2. [10]
    On 18 September 2019 MFB obtained a Noise Assessment Report from A P Bleeksma, Acoustic Consultant, which contained a number of “Final recommendations”.[3] The noise measurements for the Report were conducted on 12 August 2018 and the early hours of 13 August 2018. The comment on the noise readings obtained from the acoustic test was stated as follows:[4]

Intrusive noise levels were taken with all parts of the system operating at the same time and loudspeakers producing the same noise levels, with operational equipment in use, punters and kitchen activity. The rooftop is outdoor and no mitigation measures are in place. For restaurant measurements the door between the restaurant and the hallway leading to reception was closed, all doors to the front of the building were open.

The type of music played during testing was “Try My Love” by Lalomie Washburn (Acid Jazz) at the restaurant, and “Old Town Road” by Lil Nas X (Hip Hop), reflecting the most common music to be performed.

The “Final recommendations” related to noise levels after 7.00 pm (rooftop) and before and after 10.00 pm (rooftop and restaurant) and the playing of amplified music at the restaurant required a door to be closed between the restaurant and foyer rooms of Sarayi and all windows to remain closed.

  1. [11]
    On 14 October 2019 the Cairns Regional Council gave its approval to the MCU of the rooftop bar subject to conditions.[5] Those condition stated the approved use of the hotel includes the following restrictions, unless authorised by the Chief Executive Officer:
  1. (a)
    the hotel is limited to the operation of entertainment activities and facilities associated with a Rooftop Bar and is limited to the areas shown on the approved plans;
  2. (b)
    the hotel use must have a nexus to the existing restaurant located at ground floor; and
  3. (c)
    the rooftop must not have cooking facilities (i.e. commercial kitchen) provided therein but may be used as a temporary servery or display.

The hours of operation Monday to Sunday were limited to:

  1. (d)
    Rooftop Bar
  1. (i)
    from 10.00 am until 10.00 pm;
  2. (ii)
    no live entertainment after 7.00 pm in accordance with the recommendations of the approved Noise Assessment Report; and
  1. (e)
    Restaurant
  1. (i)
    from 10.00 am to 12.00 am;
  2. (ii)
    but, did not exclude the playing of recorded music through a PA system below the recommended maximum levels identified in the Noise Assessment Report.

The approval also contains the following noise management requirements:

  1. (f)
    A Noise Management Plan must be prepared which demonstrates how the operation of the use will comply with the recommendations of the Noise Assessment Report, prepared by A P Bleeksma, dated 18 September 2019.
  2. (g)
    All actions required by the Noise Management Plan must be implemented and remain in effect at all times the approved use remains operational.
  3. (h)
    The Noise Management Plan must be submitted to and endorsed by the Chief Executive Officer prior to the Commencement of Use. No changes to the endorsed Noise Management Plan must occur without the approval of the Chief Executive Officer.
  1. [12]
    On 29 October 2019 MFB made Application for a commercial hotel licence to the Commissioner for all internal areas, restaurant and bar and all external areas including the rooftop of those premises. MFB intended to surrender the restaurant liquor licence subject to the approval of the commercial hotel liquor licence. MFB, by its agents Commercial Licensing Specialists of the Gold Coast, Queensland, gave to the Commissioner the Application for a commercial hotel licence together with number of other supporting documents including an Acoustic Report, Risk Assessment Management Report and other documents. MFB made the following request of the Commissioner:

Accordingly, we respectfully request the need for a full Community Impact Statement be waived and that a standard Community Impact Statement suffice in its place.

The Application was processed on behalf of the Commissioner by the Office for Liquor and Gaming Regulation. (OLGR).

  1. [13]
    On 31 October 2019 a Standard Community Impact Statement (the Standard CIS) was obtained for MFB’s Application by Commercial Licensing Specialists of the Gold Coast and was given to OLGR. The topics discussed included:[6]
  1. (a)
    Description of facility;
  2. (b)
    Impacts on residents and businesses within 200 m;
  3. (c)
    Sensitive Sites;
  4. (d)
    Noise Mitigation;
  5. (e)
    Cultural, recreational, employment or tourism benefits;
  6. (f)
    Impacts on traffic;
  7. (g)
    Safety of patrons, residents and businesses; and
  8. (h)
    Impact on the character or identity of the local community.
  1. [14]
    On 13 January 2020 the Council with reference to a “Change Application (Minor)” for a Material Change of Use for Hotel issued a decision notice under s 83 of the Planning Act 2016 and gave reasons for that decision as follows:[7]

An application for a Change Application (Minor Change) to a Development Permit for a Material Change of Use for a Hotel has been received by the Council. The proposed change is amend Condition 5 – Limitation of Use so that it aligns with the required Liquor Licence Application. The request still limits the activity of the Rooftop Bar to the approved plans, which are not being altered.

In light of the above considerations, the proposal has been assessed in accordance with the provisions of the Planning Act 2016 and the Minor Change Test. It is considered the proposal is a Minor Change and is recommended for approval.

  1. [15]
    On 24 January 2020, a delegate of the Commission made a determination:[8]

to waive the requirement for a full Community Impact Statement (CIS) in lieu of the Standard CIS provided in support of the application. The decision was made on the basis that the premises are currently licensed under a different licence type and that the application for commercial hotel licence was expected to be advertised.

  1. [16]
    On 31 January 2020 OLGR notified MFB that advertising of the Application for a commercial hotel licence was required to notify the public and call for any objections to be forwarded to the office of OLGR. That advertising subsequently occurred and a Statutory Declaration was provided declaring that:[9]

The objections sign for Double Island Tavern has been erected and displayed in accordance with the dimensions and dates and has remained in place for the required period of 28 days up to and including 6 March 2020.

  1. [17]
    On 31January 2020 OLGR notified the Attorney-General and Minister for Justice, the local Member of State Parliament, the Queensland Police Service and the Cairns Regional Council of MFB’s Application and sought comments or objections to the grant of the Application.
  2. [18]
    On 3 February 2020 Queensland Police Service informed OLGR that;

A/Chief Superintendent Geoff Sheldon, Far North District, has no objection in relation to this application.

  1. [19]
    The OLGR undertook a risk assessment on 19 February 2020 and commented on the Acoustic Report as follows:[10]

The above conditions from the MCU decision stem from an acoustic report by A P Bleeksma who has done numerous reports for licence premises here in Cairns in the past. …………. It is interesting to note that the 2 noise sensitive places identified are the same 2 places making waves about this application. The new report can be assessed when received.

In respect of the Standard CIS the risk assessment said:[11]

There is nothing contentious in the CIS and the only issue that is identified is the potential noise impact that should be covered by the acoustic report.

  1. [20]
    The Minutes of an Ordinary Meeting of the Cairns Regional Council held on 26 February 2020 record that in response to a request from OLGR for comments about the Application for a commercial hotel licence the Council resolved as follows:[12]

That Council advise the Office of Liquor & Gaming Regulation that it does not object to the Commercial Hotel Liquor Licence for Double Island Tavern, located at 95 – 97 Williams Esplanade, Palm Cove on the premises described as Lot 23 on SP245585 subject to the licencee complying with the conditions imposed in the Decision Notice for the Material Change of Use for the Hotel.

  1. [21]
    On 4 March 2020 the General Manager Planning & Environment for the Cairns Regional Council advised OLGR that the Council objects to the Commercial Hotel Liquor Licence for MFB be on the grounds that the amenity of the locality would be adversely impacted and stating:[13]

It should be noted that the land is included in the Tourist Accommodation Zone. A Planning Approval with conditions for a Hotel was issued on 13 January 2020, Council Reference #6265151, attached at Appendix 1. There are no planning concerns with regard to the approved use of the site.

  1. [22]
    On 5 March 2020 Commercial Licensing Specialists, on behalf of MFB, informed OLGR of its surprise at the Cairns Regional Council’s objection of 4 March 2020 as:[14]

the Council in its objection stated “There are no planning concerns with regard to the approved use of the site”; and

A copy of the Ordinary Meeting minutes for Cairns Regional Council dated 26 February 2020 provides the recommends “that Council advised the Office of Liquor and Gaming Regulation that it does not object to the Commercial Hotel Liquor Licence for Double Island Tavern”

OLGR were asked by MFB’s agents to carefully read the minutes of the Council’s Ordinary Meeting which expressly detail the discussion on the liquor application.

  1. [23]
    By the beginning of March 2020 a substantial number of objections to MFB’s application were received by OLGR.
  2. [24]
    The closing date for objections to the Application for the commercial hotel licence was 6 March 2020. 125 public objections were received.[15] The concerns expressed by objectors related to undue offence, annoyance, disturbance and inconvenience to resort guests and local residents, a deleterious and irreversible impact on the calm and tranquillity of Palm Cove, health and safety, the licensee has demonstrated limited compliance with regard to noise control at previous temporary events, provision of amplified entertainment will significantly impact local businesses and residents and a number of other issues.[16]
  3. [25]
    On 26 March 2020 OLGR wrote to the objectors informing them:

Due to the concerns associated with COVID–19 (coronavirus), and the potential number of objectors, a decision has now been made not to proceed with an objectors conference

Although an objectors conference will not be held, you are invited to provide further written submissions in support of your objection. Alternatively, you may choose to rely on the written submissions you have already made. The following information about the applicant’s proposal may assist you in this regard:

The applicant is committed to complying with the MCU approval issued by Cairns Regional Council on 13 January 2020 and conditions which may be imposed on the liquor licence by this office.

No commercial kitchen or dining is permitted on the rooftop and the ground floor restaurant is required to operate;

Acoustic testing by a qualified acoustic engineer has been undertaken at the premises and a noise management plan has been prepared, which the licensee will strictly adhere to in order to minimise noise impacts on residents;

Hours of operation are restricted to the following;

Rooftop

a.  10.00 am until 10.00 pm Monday to Sunday; and

b.  No live entertainment after 7 pm in accordance with the recommendations of the Noise Assessment Report.

Ground floor restaurant

a.  10.00 am to 12.00 am Monday to Sunday; and

b.  No live entertainment after 10.00 pm. This does not exclude playing of recorded music through the PA system below the recommended maximum levels identified within the Noise Assessment Report.

The applicant has a Risk Assessment Management Plan, which staff of the premises will be thoroughly trained in. All staff are overseen by an approved manager and/or the licensee to ensure patrons of the premises are appropriately managed to lessen the impacts of patron behaviour on the community.

OLGR required any further submissions to be lodged by 9 April 2020.

  1. [26]
    On 31 March 2020 a report by Commercial Licensing Specialists on behalf of MFB was provided to OLGR responding to the objections received up to March 2020. The Report summarised the objections against the Application relating to noise, waste, behaviour, privacy and approximately 11 other concerns. In summary, that report stated:[17]

Concerns of noise, privacy, late trade, financial impacts and risks to ambience were echoed in the petition driven by Reef House Palm Cove which was signed by 65 Palm Cove residents. An additional 79 signatures are noted on the petition, however these either lived outside of the area or did not complete the petition in a legible fashion and should be discounted.

  1. [27]
    A considerable number of objectors provided further written objections in the period to 9 April 2020. Copies of these further objections were provided by OLGR to the MFB.
  2. [28]
    On 1 May 2020 a report by Commercial Leasing Specialists, on behalf of MFB, was provided to OLGR relating to the objections. That report stated that 57 new letters were lodged but that 48 of these letters were a direct or partial copy of an objection originating from Reef House. The report summarised a number of the key points in the further objections to refuse the Application as including:[18]
    1. failure to address requirements of a Noise Management Plan;
    2. the Acoustic Testing was done without any notification to the owners, done early in the day outside normal trading hours and avoided the Date Spa, Pool and Balconies adjacent to Sarayi and the roof top;
    3. Objectors have not been able to view the Community Impact Statement and Risk Assessed Management Plan;
    4. the rooftop bar fails to include any noise attenuation;
    5. and a further five (5) categories of objections.

The report said in respect of these objections that:[19]

Mostly, these concerns were thoroughly addressed in our earlier submission to your office dated 31/3/2020. However, to refresh and address any viewpoints which may be of worthwhile, please note our following response to each of the issues set out above.

  1. [29]
    On 21 May 2020 Councillor Bob Manning, Mayor of the Cairns Regional Council, wrote to OLGR advising that the Council had on 26 February 2020 resolved to object to the Hotel Liquor Licence Application by MFB and stating his support for that Council resolution. OLGR was requested to consider the full impact of the amenity of the adjoining premises in its assessment of the application. The terms of the earlier Council resolution were stated by the Mayor of the Council as follows:[20]

That Council advises the Department of Justice, Office of Liquor & Gaming Regulation that it objects to the Commercial Hotel Liquor Licence for Double Island Tavern, located at 95- 97 Williams Esplanade, Palm Cove… on the grounds that the amenity of the locality would be adversely impacted.

  1. [30]
    The comments by the Mayor of Council were provided to Commercial Licensing Specialists, on behalf MFB, who replied by email to OLGR on 21 May 2020 requesting that it disregard the objection put forward by the Mayor and stating:[21]

If the amenity was going to be affected by the approval of this type of use, Council planning officers would have addressed it at the time of assessing the application. We have also addressed this in our previous submission.

In Council’s minutes (on record) where Counsellors were asked to support or not support the proposed application, the Mayor actually supported the application. Why the Mayor has changed his position now should be asked. Also, the Mayor has provided no evidence in his claim that the amenity of the locality would be adversely impacted.

  1. [31]
    On 24 June 2020 OLGR provided a report to the Commissioner recommending that the Application for a commercial hotel licence with restricted trading hours and subject to a number of conditions be provisionally approved. That report dealt with a number of matters including the concerns by objectors and the response to those objections by MFB. Those recommendations did not proceed and appear to have been deferred.
  2. [32]
    On 20 July 2020 OLGR requested further clarification of the Council’s position on the application for a commercial hotel licence. In that letter OLGR stated:[22]

It is noted from your letter that in January 2020, council issued a planning approval with conditions for a hotel at the site and there are no planning concerns with regard to the approved use of the site. However, in the same letter (that letter appears to be wrongly identified and should be a reference to Council’s letter dated 4 March 2020) you advise that council objects to the application for a commercial hotel licence on the grounds that the amenity of the locality would be adversely impacted. No evidence was provided to support council’s view.

  1. [33]
    The Cairns Regional Council Mayor replied on 27 July 2020 that the Development Application for the hotel was Code Assessable and did not require public notification. No submissions were received during assessment of the Application. The Council issued the approval for the hotel with conditions. The Application for a Commercial Hotel licence was required to be publicly notified and that during the Liquor Licence application process the Council became aware of concerns from the adjoining property owners with relation to:[23]
    1. Anti-social behaviour;
    2. Noise impacts on adjoining properties;
    3. Loss of amenity to the neighbourhood and adjoining properties.
    4. These concerns have been expressed to myself and the Divisional Counsellor by a number of Hoteliers in the Palm have area.

The adjoining property owners were of the opinion that the conditions of the Development Permit do not adequately mitigate their concerns. Based on this feedback, the Council at its Ordinary Meeting voted to object to the Liquor Licence.

  1. [34]
    On 29 July 2020 OLGR sought a response from MFB to the Council’s comment of 27 July 2020. Commercial Licensing Specialists responded on behalf of MFB and stated that when the Council considered the Development Approval on 18 December 2019 its officers had considered the impact the hotel may have on adjoining properties as part of that assessment. Reference was made to the following Council comment regarding adjoining property owners in the course of that assessment;[24]

Council Offices also undertook an analysis of the adjoining uses, as shown above. It is considered by applying conditions of approval consistent with the Noise Assessment Report the noise impacts will be limited. A copy of the existing proposed plans of the adjoining Reef House and Melaleuca Resort are attached in Appendix 3.

Having considered the above recommendations and an analysis of the adjoining existing land uses, conditions of approval have been recommended limiting the hours of operation and restricting the noise.

A condition of approval requires the Applicant to submit a Noise Management Plan. The Noise Management Plan must demonstrate how the operation of the use will comply with the recommendations of the Noise Assessment Report.

  1. [35]
    On 3 August 2020 OLGR submitted a second report to the Commissioner again recommending the provisional approval of the Application for a hotel license on restricted hours of trading and subject to a number of conditions. The report commented that consideration had been given to the letter from the Cairns Regional Council and the response by MFB was considered by OLGR to have adequately addressed the concerns raised by the Council. Those recommendation did not proceed and appear to have been deferred.[25]
  2. [36]
    OLGR on 17 August 2020 completed a “Checklist” of the CIS pursuant to Guideline 38. That Checklist found that relevant criteria for a Standard CIS had been provided but identified relevant criteria for a Full CIS had not been provided.[26]
  3. [37]
    On 28 August 2020 OLGR advised Commercial Licensing Specialists, on behalf of MFB, that while the delegate of the Commissioner had on 24 January 2020 made a determination to waive the requirements for a Full CIS, that as a result of a number of factors including the number of objectors, the change of attitude by the Cairns Regional Council and that the decision in Scally v Commissioner for Liquor and Gaming[27] decided that s 116 of the Liquor Act 1992 only permits a waiver of the entire CIS (rather than a partial waiver). OLGR then said that it would give consideration to accepting the previously lodged CIS if a proposal was made to carry out community consultation that would achieve the intent underpinning Guideline 38. OLGR then stated:[28]

In this regard, sections 9 to 11 of the guideline are relevant.

If your client is prepared to engage in community consultation as recommended, details of how it is intended to undertake the consultation should be provided to this office for consideration within 14 days from receipt of this correspondence. If no response is received, the application will be considered on the information already submitted.

Due to a gradual relaxation of COVID–19 restrictions, an objections conference will now be convened at an appropriate time and location to ensure that the views of the community can be fully established. The conference will also provide your client with an opportunity to directly respond to any further community concerns and develop measures to mitigate any potential impact on the amenity.

  1. [38]
    Arrangements were then made by OLGR for an objectors conference to be held on Wednesday, 23 September 2020 at the Palm Cove Services Club. Objectors were given notice of an objectors conference although there is correspondence on 3 September 2020 that certain objectors asked why they had not been provided with notice to attend the conference on 23 September 2020.[29] However, that correspondence demonstrates that those objectors nevertheless knew of the date of the objectors conference well in advance of the scheduled date.
  2. [39]
    Subsequently prior to the objectors conference, OLGR received a considerable number of objectors correspondence in the period of from August 2020 to early September 2020.
  3. [40]
    On 23 September 2020 the Objection Conference was held with local objectors attending and interstate objectors participating by a teleconference including the Deputy Mayor of the Cairns Regional Council, Councillor Terry James, as the representative for the Mayor, Bob Manning, who had lodged an objection. A representative of OLGR, Jenny Wood, as well as a Director of MFB, Mark Biancotti, attended the Conference. The Conference proceeded on the basis of Jenny Wood gave a presentation of the Application to OLGR and the conditions  proposed  for the approval, then objectors commenced identifying and discussing “Objectors Concerns” and a reply to those objections was made by the Applicants representative. The meeting closed about 7:40 pm when there was no resolution reached. All attendees were advised of their rights to appeal when the decision is ultimately made.[30]
  4. [41]
    On 1 October 2020 OLGR made enquiries of MFB as to when it would provide an expected timeframe when the additional community consultation/CIS will be lodged.[31]
  5. [42]
    After 1 October 2020 OLGR continued to receive some further objector correspondence including some correspondence from persons supporting the Application.[32]
  6. [43]
    On 21 October 2020, Commercial Licensing Specialists on behalf of MFB sent to OLGR what they said was a “Full” CIS which was in two parts, the report and the appendix.[33]
  7. [44]
    On 26 October 2020 OLGR prepared an assessment report of the Application for a commercial hotel licence by MFB. That report referred to and discussed a number of topics including;[34]
    1. Location;
    2. Amenity;
    3. Council;
    4. Police;
    5. Compliance;
    6. A Discussion on Objections; and
    7. Recommendations, which stated;
      1. OLGR compliance unit and police have no objection to the application.
      2. Without substantial evidence it is difficult to conclude the grant of a licence will inevitably result in incidents. It would be unfair to deny a new applicant the opportunity to trade under a licence.
      3. The applicant has a responsibility to ensure the entertainment and activities do not impact neighbouring residents. If issues cannot be resolved directly with the applicant, there is a complaint process available for the community and OLGR can take appropriate action if it is required.
      4. Further licence conditions can be endorsed on the licence to ameliorate impact on amenity and noise concerns.
  8. [45]
    On 14 December 2020 a further report to the Commissioner was prepared by OLGR relating to the Application for a commercial hotel licence. This report provided an explanation about the two earlier reports to the Commissioner which had been deferred and stated as follows;[35]

The decision on this application was deferred and it was requested OLGR seek further clarification from the Cairns Regional Council regarding its objection to the application on amenity grounds, which was seemingly at odds with the issue of a planning approval with conditions for the site. This task was completed in August 2020 and the application was again referred for decision.

On 25 August 2020, the Commissioner reconsidered the matter and advised the following further action was necessary to provide further context:

An objection conference was deemed necessary to better understand the nature and validity of the 125 community objections received; and

Further community consultation by the applicant with residents, local business operators and key community advisers as per the “full” CIS requirements under Guideline 38.

The report of 14 December 2020 discussed a number of topics (Objector Conference, Community Impact Assessment, several matters that have been considered) and then recommended that the Application be provisionally approved subject to a number of specified conditions with trading hours from Monday to Sunday as follows:

  1. from 10.00 am to 12.00 am (main premises);
  2. from 10.00 am to 10.00 pm (rooftop bar);

These conditions included limiting noise emanating from the premises not exceeding 75dB(C), fast response, when measured approximately 3 metres from the primary source of the noise and also contained the following conditions:

  1. The issue of the licence is subject to the lodgement of an acoustic report, the content and recommendations of which satisfy the Commissioner that any noise from the premises will not create a noise nuisance.
  1. The issue of the license may be subject to the imposition of further conditions relating to noise, based on the submitted acoustic report.

This report recommended that approval also state that the issue of the licence is subject to a final inspection of the premises by OLGR and completion of any further requirements of the Commissioner as a consequence of that final inspection and that all stated evidence must be produced to the Commissioner by 14 October 2025 in accordance with the Development Approval.

  1. [46]
    On 23 December 2020 the Commissioner provisionally approved the Application for the commercial hotel licence to commence on 23 December 2020 until 22 December 2024 based on OLGR’s report and recommendations.[36]
  2. [47]
    On 3 February 2021 the Applicant filed in the Tribunal an Application to review a decision of the Commissioner made on 23 December 2020.
  3. [48]
    The Tribunal subsequently gave the parties Directions for the preparation of these proceedings and set the hearing dated for the proceedings down for 10 June 2022.

Ratcliffe Architecture Pty Ltd – New Evidence

  1. [49]
    Ratcliffe Architecture Pty Ltd, an Applicant in these proceedings, seeks to rely upon the new evidence provided in its written submissions on 10 May 2022. That new evidence consists of the following;
    1. Palm Cove streetscape and landscape Master Plan consultation update; and
    2. Email from Leigh Ratcliffe dated 9 May 2022 containing two photographs of the relevant area in Palm Cove.
  2. [50]
    Both of the documents are new evidence.
  3. [51]
    The Commissioner submits that as these documents were not provided at or prior to the time of the decision on 23 December 2020 they should not be considered by the Tribunal. The Commissioner refers to the Tribunal’s discretion pursuant to s 33 of the Liquor Act to permit new evidence to be made available to the Tribunal provided it is demonstrated that;
    1. Ratcliffe Architecture Pty Ltd did not know, or could reasonably be expected not to know of the existence of that evidence before 23 December 2020; and
    2. in the circumstances it would be unfair not to permit that evidence to be available to the Tribunal.
  4. [52]
    The Commissioner submits that the new evidence does not satisfy the criteria for now allowing that new evidence to be before the Tribunal. It submits that the Masterplan is undated but in any event it would not be unfair to the Applicant to exclude the evidence. Also, it is said that the photographs could have been provided before 23 December 2020 however they provide no support for the Tribunal or the parties to determine the application for a commercial hotel licence.
  5. [53]
    The Tribunal is not satisfied that the Ratcliffe Architecture Pty Ltd has demonstrated that it did not know, or could reasonably be expected not to know of the existence of those documents prior to 23 December 2020. Secondly, there has been no proper basis set out on which the Tribunal could consider that the exclusion of the new evidence would be unfair to Ratcliffe Architecture Pty Ltd or indeed any of the other Applicants in these proceedings. In these circumstances the Tribunal is not prepared to exercise its discretion pursuant to s 33 of the Liquor Act and will exclude that new evidence from the hearing before the Tribunal in these proceedings.

Review Jurisdiction of the Tribunal.

  1. [54]
    By filing the Application to review a decision in the Tribunal on 3 February 2021 the Applicant has sought to engage the Review Jurisdiction of the Tribunal.
  2. [55]
    The Tribunal has jurisdiction to review the decision provided it is empowered to do so by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and an enabling Act.[37]
  3. [56]
    The Liquor Act 1992 (Qld) (Liquor Act) provides that the Tribunal may review the decision of the Commissioner in relation to;
    1. the grant of a licence;[38] or
    2. the specification of conditions in a licence;[39]
  4. [57]
    The Liquor Act also provides that a person may apply to the Tribunal for a review of the decision if the person made an application, submission or objection in the proceedings in which the decision was made or the person is aggrieved by the decision.[40] The Applicant in these proceedings satisfies these criteria as applications have been filed.
  5. [58]
    The Liquor Act is the “enabling Act” for the purpose of the Tribunal’s jurisdiction in these proceedings.
  6. [59]
    In proceedings for a review of a decision of the Commissioner the Tribunal must;[41]
    1. hear and decide the review of the decision by way of a reconsideration of the evidence before the Commissioner when the decision was made; and
    2. decide the review of the decision in accordance with the same law that applied to the making of the original decision.
  7. [60]
    The Tribunal in the proceedings is also authorised to grant a party to the proceedings for a review of a decision of the Commissioner leave to present new evidence if the Tribunal is satisfied that certain is specific conditions have been met.[42] This has been referred to earlier in relation to the application by Ratcliffe Architecture to file new evidence.
  8. [61]
    In exercising the Tribunal’s jurisdiction it must decide the review in accordance with the QCAT Act and the Liquor Act and may perform the functions conferred by both Acts and has all the functions of the Commissioner for the reviewable decision being reviewed.[43]
  9. [62]
    The Tribunal must also hear and decide the review by way of a fresh hearing on the merits with the purpose of the review is to produce the correct and preferable decision.[44]
  10. [63]
    In conducting this review of the Commissioner’s decision, the Tribunal may;[45]
    1. confirm or amend the decision; or
    2. set aside the decision and substitute its own decision; or
    3. set aside the decision and return the matter for reconsideration to the Commissioner, with directions the Tribunal considers appropriate.

Applicant’s Grounds for Review of the Commissioner’s Decision

  1. [64]
    The Application to review the decision of the Commissioner contained various grounds setting out why the Applicant considered the decision is wrong or not properly made.
  2. [65]
    In response to the Tribunal’s Directions,[46] the Applicant filed submissions in relation to the final relief sought on 9 May 2022 and further submissions in reply to the Respondent’s submissions on 6 June 2022.
  3. [66]
    Those submissions filed by the Applicant sought to raise the following grounds:
    1. the primary conclusion is that the bundle of documents filed by the Commissioner in the Tribunal on 27 April 2021 in accordance with s 21 of the QCAT Act (“s 21 documents”) does not contain sufficient information to support the original decision and the correct and preferable decision is to set aside that decision and refused the Application;[47]
    2. there are three critical failures that conclusively demonstrate the original decision is both untenable and premature to such an extent that the Tribunal has little choice but to set aside the original decision for the following three (3) key grounds;[48]
      1. the CIS is highly deficient and does not comply with the Commissioner’s Guideline as identified in Scally v Commissioner for Liquor and Gaming & Anor;
      2. the Development Approval is subject to a condition requiring submission and approval of a Noise Management plan which is not included in the s 21 documents;
      3. no relevant noise attenuation building works are proposed, there is no reasonable justification for granting the Application without a full acoustic report as required by Guideline 51 and s 4(2)(d), (3) &(4) of the Regulation.

The Applicant also submits that there are “multiple other failures of both the first and second respondent as part of its submissions.

  1. [67]
    The Tribunal will first consider the “three critical failures” relied upon by the Applicant ahead of its consideration of the submission relating to its “primary conclusion” relating to the s 21 documents and the multiple other failures said to be made by both respondents.
  2. [68]
    Was the CIS Deficient and Non-Compliant with the Guidelines.

Applicant’s Submissions

  1. [69]
    The Applicant submits that a Full CIS was required because this was an Application for a commercial hotel licence. The submission made is that the CIS provided by MFB in these proceedings did not provide information required by different criteria in the Commissioner’s Guideline 38.
  2. [70]
    The Applicant points out that the OLGR “Checklist” dated 17 August 2020 found that relevant criteria in Guideline 38 for a Full CIS was not provided in the Standard CIS of 31 October 2019. The submission is also made that the Full CIS of 21 October 2020 does not address a number of sections in the Guideline required for a Full CIS. It also states that an updated “Checklist” was not completed. Further issues are raised about these documents in that it indicates only 17 businesses were visited, 14 of which had responded when a search of the locality identifies there are a total of 13 licence venues within 200 m radius of the hotel site. It further submits that none of the businesses directly adjoining the hotel site were surveyed as part of the consultation process despite being the venues most likely to be affected by the application.[49]
  3. [71]
    The Applicants’ submissions also rely on Scally v Commissioner for Liquor and Gaming & Anor[50] and in particular the following considerations:
    1. a lack of objectivity and neutrality will detract from the weight to be placed on a CIS. It must not be partisan and requires community consultation in the nearby area to discover whether there are downsides;[51]
    2. the critical question is whether the Tribunal has sufficient information to make a proper decision under section 121 of the Liquor Act despite any gaps in the community impact statement;[52]
    3. where a change proposed is significant there have been no proper basis to waive requirement for a community impact statement which warrants rigorous community consultation in preparation of the full and balanced CIS.[53]and
    4. the CIS provided was insufficient in its refusal to undertake the intensive community consultation required by Guideline 38. It resulted in insufficient information about aspects of amenity and experiences and views of local residences and businesses and of key advisers. There was insufficient information to make a properly informed decision under section 121 of the Liquor Act.[54]
    5. In Scally’s case the application for a commercial hotel licence required an accurate and full community impact statement which was not provided and in those circumstances the proper course was to refuse its application.
  4. [72]
    The Applicant submits there are no grounds to deviate from the decision in Scally’s case. It submits the CIS is significantly deficient of information required by Guideline 38 and the failure to address properly the criteria in that Guideline means that MFBs application for a commercial hotel licence should be refused.[55]

Commissioner’s Submissions

  1. [73]
    The Commissioner submits that the CIS complies with section 116 (8) of the Liquor Act and Guideline 38.[56] The submission is that the CIS clearly articulates the impact on the amenity of the locality.
  2. [74]
    The Commissioner refers to the relevant purposes of the Liquor Act as including minimising harm from alcohol abuse and facilitating the optimum development of tourism, liquor and hospitality industries in the State.[57]
  3. [75]
    The Commissioner submits that there are seven (7) criteria which a Full CIS must contain to comply with Guideline 38.[58] It is submitted that these requirements are addressed in the CIS of 31 October 2019 and the further CIS of 21 October 2020.[59] The submissions then proceeds to identify the relevant requirements for compliance with Guideline 38.[60]
  4. [76]
    The Commissioner furthers submits that the CIS identified the risk of impact of the proposed licence as being low and that the LCA was socially and economically suited to the grant of the license. The Commissioner submits it was the responsibility of MFB to comply with all conditions imposed on the licence and to ensure that entertainment and other activities did not impact on neighbouring residents. There is a complaints process available to the public which allows the Commissioner to take the action required to alleviate or mitigate issues raised. The Commissioner relies upon the strict conditions of the approval which MFB must comply with in terms of trading hours and noise. The Commissioner also submits that MFB was directed to amend the Application to comply with Guideline 38.[61]

MFB’s Submissions

  1. [77]
    MFB says that it received a waiver for a Full CIS from the Commissioner and submitted a Standard CIS.
  2. [78]
    MFB also submits that after conducting advertising and receiving community objection and engaging in community consultation a Full CIS was prepared and submitted to OLGR on 31 October 2020.
  3. [79]
    It is also submitted that while the CIS must meet minimum standards for a Full CIS, it does not have to follow a template but must be “mostly” complete.[62]
  4. [80]
    MFB says that it visited an appropriate number of businesses and local community members, and more than the required number of “Key Community advisors” were notified. Sixty (60) surveys were distributed of which 31 were in support of the Application, 16 were against and 13 adopted a neutral stance. This equates to 51% in favour, 26% against, and 21% neutral.[63]
  5. [81]
    MFB submits that a “Full” CIS was completed and accompanied with an appropriate level of community consultation. No checklist is required to be provided under Guideline 38. It adopts the Commissioner’s submissions filed on 23 May 2022 (at paragraphs 15 to 23 inclusive).[64]
  6. [82]
    MFB also submits that many objections were received and all individual objections were considered and specifically responded to and no objector, including Reef House were purposely avoided or not consulted as their arguments were received, documented, assessed and responses were made.[65]
  7. [83]
    MFB says that Guideline 38 defines “infiltration” as the introduction of a new liquor outlet or style of venue into an area where similar businesses have not previously operated. However, it says that the only other commercial hotel license within the boundaries of the LCA is the Palm Cove Tavern, situated 700 metres by car at 24 Veivers Road, Palm Cove. Accordingly, it submits there is only slight impact of a high concentration of operating commercial hotel licenses within the LCA. The operating conditions on MFP’s hotel, it says, are more restrictive for licensed hours resulting in earlier closing than the Palm Cove Tavern. There are thirteen (13) other licensed premises within a 200-metre radius of the site.[66]
  8. [84]
    MFB contends that the Scally case was “markedly different” in that Scally was significantly lacking major sections of its CIS such as community consultation. MFB says it’s “Full” CIS “addresses most of the criteria in Guideline 38 including community consultation.

CIS - Statutory and Legal Framework

  1. [85]
    The parties have referred to provisions in the Liquor Act, the Guidelines and to Scally’s case. The relevant provisions are set out below.
  2. [86]
    The main purpose of the Liquor Act is set out in s 3 which includes the following provisions;
    1. to regulate the liquor industry, and areas in the vicinity of licensed premises, in a way compatible with –
      1. minimising harm, and the potential for harm, from alcohol abuse and misuse and associated violence;
      2. minimising adverse effects on the health or safety of members of the public; and
      3. minimising adverse effects on the amenity of the community.
  3. [87]
    The requirement for a CIS and the Commissioner’s discretion to waive the requirement of a CIS is contained in s 116 of the Liquor Act. The purpose of the CIS is to help the Commissioner assess the impact on the community concerned if the application were granted.[67] The matters to which the CIS must deal with are contained in s 116 (8) which is in the following terms;
    1. a community impact statement must address the following –
      1. the existing and projected population and demographic trends in the locality;
      2. the number of persons residing in, resorting to or passing through the locality and their respective expectations;
      3. the likely health and social impacts that granting the application would have on the population of the locality;
      4. an assessment of the magnitude, duration and probability of the occurrence of the health and social impacts;
      5. 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.

An applicant preparing a community impact statement must have regard to the relevant guidelines issued by the Commissioner.[68] The Commissioner may make guidelines to inform persons about the attitude the Commissioner is likely to adopt, how the Act is administered and may help persons comply with their responsibilities lawfully and appropriately exercise powers under the Liquor Act.[69]

  1. [88]
    The Commissioner’s Guideline 16 relates to the control of entertainment noise. Where an acoustic report is submitted (as is the situation in these proceedings) Guideline 16 (2) applies so that noise emanating from the premises, including amplified or non-amplified noise and patron noise, must not exceed a nominated level to be determined when measured approximately 3 metres from the primary source of the noise.
  2. [89]
    Guideline 38 relates to the preparation of a CIS. The Guideline explains the requirements for a “Standard” and a “Full” assessment. It provides that a” Full” CIS is mandatory where there is an application for a commercial hotel license and must contain a description and contents in accordance with the following;
    1. Delineation of the Local Community Area;
    2. Social profile of the Local Community Area;
    3. Assessment of community risk;
    4. The likely health and social impacts (positive and negative impacts);
    5. Consultation with residents and businesses within 200 metres of the site;
    6. Consultation via a survey with residents in the Local Community Area;
    7. Consultation with key advisers.
  3. [90]
    The Liquor Act by s 121 contains a description of the matters the Commissioner must have regard to in deciding whether to grant an application. Those matters include the CIS if required, objections to the grant of the application, impact on the amenity of the community and other specified matters. 
  4. [91]
    Scally’s case[70] concerned an application for a commercial hotel license in an inner Brisbane city suburb where there had been limited period of advertising, limited objections received, a CIS which was highly deficient as determined by the Tribunal, and a lack of community consultation. In the discussion concerning the requirements of a “Full” CIS the Tribunal stated;[71]

I accept Mr Herbert’s submissions 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 license. The guideline envisages an intensive and rigorous community consultation process, reflecting the potentially significant social impacts of liquor licenses

  1. [92]
    Later the Tribunal went on to state a number of considerations affecting whether there was sufficient information to make a properly informed decision under section 121 of the Liquor Act, and then stated;

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 un-analysed. There is insufficient information to make a properly informed decision under section 121 of the Liquor Act.

Does MFB’s CIS Provide Information Required by the Act and Guideline 38.

  1. [93]
    The Applicant submits that the Standard CIS of 31 October 2019 is totally deficient in providing the Guideline 38 criteria for a Full CIS. That submission is not contradicted by the parties and is not controversial [72] In respect of the Full CIS submitted by MFB on 21 October 2020, the Applicant submits there are still deficiencies with that document as a number of sections were not addressed in compliance with Guideline 38.[73] That submission is contradicted by both respondents and it is controversial.
  2. [94]
    The Applicant submits that firstly a deficiency in the Full CIS arises as there is no supplementary data included in the discussion on the “Demographic Profile and the description of key elements”. Guideline 38 requires that published demographic data should be supplemented by accessing local community data from an appropriate range of community professionals.
  3. [95]
    In the Full CIS one of the areas included is “tourist operators”. The Full CIS contains a “comprehensive tourism profile” for the greater Cairns Tourism Region and states;[74]

where possible, is supplemented by limited data that is available to the LCA to provide further insight. The Cairns Tourism Region effectively overlaps the aforementioned Cairns LGA.

  1. [96]
    Contrary to the Applicants submissions supplementary data in the form of tourism has been provided but the CIS indicates there is limited data available to the LCA. The Applicant’s submission that there is no supplementary data on this topic in the CIS overlooks the provision of information concerning “tourist operators” with the qualification that there is limited data available to the LCA. In the circumstances the Tribunal accepts that the Full CIS provided available information to the Commissioner although it may be limited in aspects are but is otherwise compliant with Guideline 38. The Tribunal rejects the Applicants submissions in respect of this issue.
  2. [97]
    A further deficiency referred to by the Applicant is said to be that an Assessment of Risk was not included in the CIS. It is noted that MFB provided a Risk Assessment Management Plan dated 18 November 2019 in support of its commercial hotel license. While that Plan dealt with internal arrangements for managing risk within the hotel, but not risk within the wider LCA, it nevertheless contained some information available for an assessment of the Application. In the Standard CIS and in the later Full CIS there is a specific designated topic on “Assessment of community risk”. Guideline 38 says in respect of this topic;

In considering an application, the Commissioner will consider whether the Local Community Area may be deemed ‘at risk’ in terms of social and economic factors. The following table provides a mechanism for assessing the risk.

Where a Local Community Area is identified as high risk, the applicant will be required to provide compelling evidence of mitigating measures which demonstrably address these high-risk factors. The factors and their relative weightings are derived from a consideration of the ABS Socio-economic Index of Areas (SEI FA) data, and academic research relevant to alcohol.

  1. [98]
    The Applicants submissions do not extend to setting out any basis as to whether there is “low risk” or “high risk” for the Local Community Area in terms of social and economic factors. Rather, the Applicants submissions appear to be directed that the topic was not included in the submitted CIS.
  2. [99]
    Notwithstanding the absence of a designated topic heading “Assessment of Risk”, in the Full CIS there was nevertheless information provided by MFB to the Commission required by the “Table” in Guideline 38[75] relating to that topic. For example there is information from the Australian Bureau of Statistics (ABS) relating to a relevant topic of information including such persons 15 years and over with no qualifications,[76] Aboriginal or Tourist Strait Islander people,[77] recent migrants from non-English speaking countries;[78] occupied private dwellings with two or more families;[79] household renting;[80] one parent families with dependent offspring;[81] while information was sought about males and females (in labour force) who were unemployed, the Full CIS provided ABS statistical information for persons (in labour force) unemployed and provided a breakdown of that employment information (in labour force) for the LCA and also in Queensland;[82] and finally employed males and females classified as “labourers and related workers”.[83] These matters covered the various items of information identified in the Table” in Guideline 38 which provides the mechanism for assessing whether the LCA is “at risk”. Contrary to the Applicants submissions the relevant areas relating to the Assessment of Risk were included in the Full CIS.
  3. [100]
    Additional information was provided in the Full CIS on the issue whether the LCA was “at risk” relating to the impact on the local community as a whole[84] and the impact on vulnerable groups which, in part, stated the following;[85]

As aforementioned, within the LCA there is a smaller proportion of young people (0 – 24 years) relative to the LCA and the wider state. There are less recent migrants from non-English speaking countries, and significantly less indigenous persons, relative the LGA and the wider state of Queensland. Furthermore, as detailed in a later section of this report, there were no sensitive venues in proximity (200 m) to the venue, which would otherwise increase the exposure of these groups to potential harms. On these bases, it was deemed of low likelihood that these groups would be adversely affected by the grant of the proposed licence. Nonetheless, as identified below, where possible, steps have been taken to further mitigate any risk that might be present.

  1. [101]
    The Tribunal accepts, contrary to the submissions by the Applicant, that there was sufficient relevant information included in the Full CIS on which an assessment of risk could be undertaken. The Tribunal rejects the Applicant’s submission that there was no information provided or included for the assessment of risk.
  2. [102]
    The Applicants submissions appear to acknowledge that the absence of a discussion about “Remote Communities” is not applicable as the hotel site is not classified in a Remote Community.
  3. [103]
    The Applicant submits a further deficiency in the Full CIS is that nothing was included relating to “Infiltration or High Concentration” of venues relating to the following;
    1. the number and type of premises whose ownership and/or license have been transferred in the last 2/3 years;
    2. the number of premises that have closed down;
    3. complaints from the community and/or police records regarding social impact issues;
    4. evidence of any irresponsible hospitality practices identified in the Local Community Area;
    5. the number and type of premises that are currently under-utilising their licence trading hours; and
    6. the number of active and inactive licenses.
  4. [104]
    The Commissioner makes the following submission;

In terms of infiltration, there is another commercial hotel (Palm Cove Tavern) and more than 30 licensed premises already trading in the LCA.

  1. [105]
    MFB’s submissions also dealt with the question of “infiltration” and stated the following;

In relation to the allegation of ‘infiltration’, there is currently only one other venue within the boundaries of the LCA within the proximity of the proposed site that currently holds a Commercial Hotel Licence. That site is Palm Cove Tavern, situated 700 metres from the subject site by car at 24 Veivers Road, Palm Cove. Palm Cove Tavern is the only other venue currently operating a Commercial Hotel Licence within the LCA. Accordingly, it can be determined that there is only a slight impact of a high concentration of operating commercial hotel licenses within the LCA.

  1. [106]
    The evidence is that there was wide community consultation including with the Queensland Police Service. In terms of the local community in the Commissioner makes this submission;

Sixty (60) surveys were conducted with members of the community, with fifty-four (54) surveys done by residents within 200 metres of the Premises. 51.7% of those surveyed supported the application, 26.7% did not support it and the remaining responses were neutral

The objection process included the Queensland Police Service who raised no objection to the commercial hotel licence being sought by MFB.

  1. [107]
    The evidence is that the Palm Cove region operates as a vibrant and successful tourist and commercial location. There is no evidence from any of the parties to suggest that there is any relevant evidence missing relating to premises whose ownership or license may have been transferred in the last two – three years or that have closed down. There is evidence about prior earlier complaints concerning the operation of MFB’s premises operating under the restaurant and accommodation premises. However, it is explained that the earlier license did not have the same restrictive trading and noise conditions that would operate under the MCU approval by the Cairns Regional Council and by the Commissioner’s decision. Those restrictions did not apply to the earlier operation of these premises. It is not suggested that there is any other relevant evidence available relating to complaints from the community and/or police regarding social impact issues. The Tribunal is not satisfied that relevant information was not made available in the Full CIS. Available information was contained in that document and was provided to the Commissioner. The Tribunal rejects the Applicants submissions relating to this issue. The Tribunal accepts that the Full CIS did provide requisite Guideline 38 information in support of the application for the commercial hotel licence.
  2. [108]
    The Applicant further submits that in terms of Guideline 38 the requirement for Community Consultation was not provided. The Applicant takes issue with the Full CIS stating that 17 businesses were visited, 14 of which responded. The Applicant states that there are a total of 13 licensed premises within 200 metre radius and only one of which was included in the consultation process (the Underground Café). It also says that none of the businesses directly adjoining the premises were surveyed as part of the consultation process.
  3. [109]
    Guideline 38 provides that community consultation forms an essential part of the community impact statement and states;

The onus…… rests with the applicant to at least demonstrate that efforts have been made to assess community views on the proposal. The purpose of the community consultation is to seek the views and concerns of the community on the particular proposal, rather than their views and concerns on liquor in general.

Applicants will have to demonstrate consultation with immediate and adjoining residents and businesses or those in close proximity (i.e., 200 metres) who are likely to have issues of noise, traffic and other effects on lifestyle amenity.

  1. [110]
    The Commissioner’s submissions referred to sixteen (16) surveys conducted with members of the community and says that;

40% of respondents believe the premises would serve as a benefit to them personally, with those benefits including;

more variety of venues;

better nightlife;

bring entertainment, such as live music; and/or

provide more work.

Business consultation supported the grant of the license, with 78.6% of the businesses surveyed supporting the grant. 64.3% of respondents stated the premises would not have an impact on surrounding businesses. 85.7% of respondents believe the premises would have a beneficial impact on the reputation of the LCA.

  1. [111]
    MFB in its submissions says the “Full” CIS exceeded the minimum number of residents businesses and community stakeholders required to be notified and invited to comment on the application.[86] It refers to the number of businesses and residents notified and the analysis of objections received. It adopts the Commissioner’s submissions at paragraphs 15 to 23 (inclusive). It also states in respect of the adjoining business the following;[87]

The indication that Reef House was purposely avoided or not consulted is false as their arguments were clearly received, documented, responded to and assessed by both the licensing agent and by delegates of the First Respondent, which is discussed in length throughout the SOR and evident in the BORD. The Second Respondent provided lengthy responses to objections and matters raised by the Reef House in documents contained within the BORD titled Licensee Response to Objections and Licensee Response to Further Submissions 1 May 2020. In the Second Respondent’s submissions, these responses are more compelling than the CIS survey, as the individual concerns are specifically addressed.

  1. [112]
    The submissions of the Applicant suggests that the 13 licensed premises should have been but were not part of the community consultations. Guideline 18 says that the onus is on the applicant to at least demonstrate that efforts have been made to assess community views on the proposal. The 13 licensed premises referred to by the Applicant are part of the wider community within the radius of MFB’s proposed hotel site. The evidence available to the Tribunal demonstrates that there was an assessment of community views on the proposal and in addition licensed neighbours, such as Reef House, had an opportunity through the objection process to be heard and to which MFB responded. The Tribunal accepts that evidence and finds that in terms of Guideline 38 it has demonstrated efforts have been made to assess community views on the proposal. The Tribunal accepts the submissions of the Commissioner and MFB. The Tribunal rejects the submissions of the Applicant.
  2. [113]
    The concluding submissions of the Applicant is that in these proceedings “on this element alone” there is no justifiable grounds to deviate from the conclusion and decision that the CIS is deficient in many respects but notably in its refusal to undertake the intensive community consideration required by Guideline 38.[88] It says here is insufficient information to make a properly informed decision under section 121 of the Liquor Act and the proper decision is to refuse the application for a commercial hotel licence. The Applicant relies upon Staddon and Ors v Chief Executive, Department of Employment, Economic Development and Innovation and Anor[89] for the following statement;

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)l.

  1. [114]
    The evidence in these proceedings demonstrates that a Standard CIS was prepared for the commercial hotel licence was inadequate and did not comply with the Liquor Act nor Guideline 38. A “Full” CIS was subsequently prepared and provided to the Commissioner. The Applicant has made a number of criticisms of that “Full” CIS stating that the document provided was highly deficient in complying with Guideline 38.but those criticisms have not been supported by the evidence before the Tribunal. The Tribunal is not satisfied that the Applicants submissions that the Full CIS is highly deficient and has rejected those submissions. The Tribunal finds that the Full CIS provided sufficient detail and information for the purposes of s 116 (8) and s 121 of the Liquor Act as well as the Commissioner’s Guideline 38.

The Development Approval is subject to a Noise Management Plan.

The Applicants Submissions.

  1. [115]
    The Applicants submissions referred to the MCU approval by the Cairns Regional Council imposing a number of conditions which, it submits, should have been of concern to the Commissioner to ensure the Application for the commercial hotel licence and its impacts were fully and properly assessed.[90]
  2. [116]
    The conditions relied upon by the Applicant relate to patron and entertainment noise levels within the permitted hours of operation of the restaurants/hotel and in particular condition 7 of the Council approval which states;[91]

A Noise Management Plan must be prepared which demonstrates how the operation of the use will comply with the recommendations of the Noise Assessment Report, prepared by A. P. Bleeksma, dated 18 September 2019.

All actions required by the Noise Management Plan must be implemented and remain in effect at all times the approved use remains operational.

The Noise Management Plan must be submitted to and endorsed by the Chief Executive Officer prior to the commencement of use. No changes to the endorsed Noise Management Plan must occur without the approval of the Chief Executive Officer.

  1. [117]
    The Applicant submits that there is no evidence in the Commissioner’s s 21 documents that a Noise Management Plan has been implemented or that the plan has been submitted and endorsed by the Council CEO.[92] The Applicant also relies upon s 72(1)(b) of the Planning Act 2016 (Qld) which requires all development conditions of permits be complied with before development starts.
  2. [118]
    The Applicant submits that the evidence demonstrates that this condition has not been complied with and the granting of approval for the Application is therefore premature because the Development Approval cannot start without this pre-condition being established.[93] The Applicant submits that as the relevant conditions of the Council’s approval have not been established with supporting evidence, the Tribunal should refuse the Application for a commercial hotel licence.

The Commissioner’s Submissions.

  1. [119]
    The Commissioner submits that the MCU approval was another feature taken into account by the Commissioner and provides further support for the conclusion for the grant the commercial hotel license.
  2. [120]
    The Commissioner notes that there is presently no noise management plan but submits that;[94]

The First Respondent submits that there are no provisions in the Liquor Act that require the Commissioner to ascertain whether the licensee has complied with all aspects of the development approval. It is submitted that the Commissioner was satisfied that approval of the licence with conditions, as set out in the MCU, is consistent with the terms of the development approval.

The Liquor Act does not require the Commissioner to make a detailed assessment of town planning. The opportunity is provided to the local council to make comment about the application, which was done by the First Respondent. The Cairns Regional Council provided no objection on town planning grounds.

  1. [121]
    The Commissioner submits that if the Applicant considers a town planning approval to be deficient the appropriate forum to ventilate those concerns is the Planning and Environment Court.

MFB’s Submissions.

  1. [122]
    MFB says that it intends to provide amplified entertainment at the premises and as such an acoustic report is required to be undertaken by Guideline 51 by a qualified acoustic engineer. It says that after the liquor acoustic report is completed MFB will obtain a noise management plan which is to be worked out to satisfy both the Cairns Regional Council and liquor requirements and provide an operational guide for MFB, management and staff. MFB makes the submission;[95]

The final noise management plan will be required to be lodged to Council once complete. To be reiterated, acoustic testing to satisfy OLGR Guideline 51 cannot be undertaken until building works are completed at the premises. The refurbishment of the roof top has not commenced due to this appeal.

The Second Respondent will be obliged to comply with conditions of the Council decision notice and provisionally issued (hotel) liquor licence.

Tribunal’s Consideration.

  1. [123]
    The conditions of approval of the MCU required a noise management plan. There is a consensus between all parties that to date a noise management plan has not been provided in accordance with the approval by the Council.
  2. [124]
    The Applicant says the Commissioner’s approval before the provision of the noise management plan is premature and should not have been granted. It relies on provisions in the Planning Act which relate to the commencement of the development and other matters for the local Council.
  3. [125]
    The Commissioner in considering whether or not to approve the commercial hotel licence is concerned particularly with those matters in s 116, s 121 of the Liquor Act and the various Guidelines. None of those provisions require that the Commissioner to conduct an investigation or an audit into compliance with those matters within the town planning area conducted by the local Council. Rather, the Commissioner was concerned that the approval of the commercial hotel licence reflected the same conditions particularly as to noise that had been applied to the MCU.
  4. [126]
    MFB refers to the need to obtain an acoustic report and when completed will obtain the noise management plan which cannot be undertaken to satisfy Guideline 51 until building works are completed at the premises. It appears that pending the outcome of the decision in these proceedings those building works to the roof top have been put on hold .It is clearly envisaged by MFB that the appropriate time for obtaining the noise management plan is once the premises are completed and a noise report can be obtained at that time. The Applicant in its submissions disagrees with this approach and considers that the development cannot commence until the noise management plan has been provided to the Council. It is also noted that in the Applicants submissions in reply filed on 6 June 2022 that there is no contradiction of submissions made by the Commissioner or by MFB as set out above. The Tribunal prefers the submissions of the Commissioner and MFB and rejects the submissions of the Applicant. The Tribunal does not accept that the absence of the noise management plan should in any way hinder or prevent the Commissioner from making a decision whether to grant the commercial hotel licence to MFB. Rather, the Commissioner decision takes into account the need for a noise management plan to be provided and caters for that in the conditions of the grant to MFB.

Was a Full Acoustic Report as required by Guideline 51 and s 4 of the Regulation.

Applicants Submissions.

  1. [127]
    The Applicant submits the acoustic report provided to the Cairns Regional Council as part of the MCU fails to consider standard patron noise tables for a capacity of 186 patrons which would have been required if an acoustic report was compliant with Guideline 51.[96]
  2. [128]
    The Applicant further submits that in some cases it is appropriate for a decision to be granted subject to an acoustic report being provided, however, the Applicant limits these circumstances to a “green field site or where substantial construction and acoustic screening is proposed”. It submits that this site is different with a rooftop already used for functions where there has been complaints about previous events. It also refers to objectors citing a history of adverse amenity impacts on their residence from the use of that area.
  3. [129]
    It is further submitted that the acoustic evidence provided to the Commission was limited and that there was a need for an acoustic report to include a number of observations relating to site assessment/measurement methodology, survey times, description of potential noise source areas and a range of other considerations.[97]
  4. [130]
    The Applicants submit there is no reasonable justification for prematurely granting the commercial hotel licence with 186 seat capacity on an exposed rooftop area, with proposed DJs, live bands and entertainers and adjoining two (2) establish residential resorts without an expert report addressing all requirements of the Act.

Commissioner’s Submissions

  1. [131]
    The Commissioner submits that the Cairns Regional Councils approval of the MCU with conditions limiting hours of operation and noise adequately addresses any possible risks or impacts from granting the commercial hotel licence. It also submits those risks were adequately addressed in the CIS.
  2. [132]
    The Commissioner submits that an acoustic report in compliance with Guideline 51 is not required until the noise emanating from the premises exceeds 75dB(C). Reference is made to the Risk Assessment Management Plan which refers to monitoring noise levels to ensure they do not exceed the allowable levels conditioned on the liquor licence. The Commissioner submits that;

Once the building works are completed, the Second Respondent will be required to lodge an acoustic report to satisfy the Commissioner that noise emanating from the Premises will not be ‘unreasonable noise’ within the meaning of section 40 of the Liquor Regulation 2002.

  1. [133]
    The Commissioner says that the provisional approval was not premature as there is authorisation by s 123 of the Liquor Act to grant the provisional licence, subject to completion of building works. The relevant provisions in s 123(1)(c) of the Liquor Act state;

The Commissioner would grant the application if the building or structure forming part of the proposed premises –

  1. (a)
    were completed under the law relating to carrying out building work; or
  2. (b)
    were approved or certified as required by law for use as licence premises and, if the case requires it, for conduct of the premises of a business for which the licence was sought.

The Liquor Act also provides that a provisional grant of a licence can be subject to a condition that the applicant produces evidence of the completion of the building work or approval or certification as required by law.[98]

MFB’s Submissions.

  1. [134]
    MFB submissions state that it intends to provide amplified entertainment at the premises and an acoustic report is required to be undertaken according to Guideline 51 by a qualified acoustic engineer. The testing by a qualified acoustic engineer is to be undertaken upon completion of the rooftop fit out. This is conditioned in the liquor licence.[99]
  2. [135]
    Otherwise, MFB relies upon the Commissioner’s submissions referred to above.[100]

Tribunal’s consideration

  1. [136]
    The controversy raised in these submissions is whether an acoustic report should be obtained prior to the Commissioner’s decision to grant the commercial hotel licence or whether that report can be obtained subsequent to the decision.
  2. [137]
    As submitted by the Commissioner provision is made in s 123(2) of the Liquor Act authorising the Commissioner to grant the application provisionally subject to a condition that the applicant produces evidence on the completion of the building work or approval or certification as required by law.
  3. [138]
    The provisional licence granted by the Commissioner to MFB is  to commence on 24 June 2010 and contained a number of conditions but included the following conditions:[101]
    1. the issue of the 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 Commissioner as a consequence of that final inspection.
    2. The issue of the license may be subject to the imposition of further conditions relating to noise, based on the submitted acoustic report.
    3. The issue of the licence is subject to the lodgement of an acoustic report of which, the content and recommendations satisfy the Commissioner that any noise from the premises will not create a noise nuisance.
    4. All the stated evidence must be produced to the Commissioner by 14 October 2025 in accordance with the development approval.
  4. [139]
    The evidence before the Tribunal is that the Commissioner assessed the application for the commercial hotel licence where a development approval had been given for the use of the premises. T The Commissioner was authorised to grant the application provisionally subject to the conditions that the Applicant provides evidence of completion of the building work or approved or certification as required by law.[102]
  5. [140]
    MFB acknowledges that it intends to provide amplified entertainment and that it will have to provide an acoustic report in accordance with Guideline 51 by a qualified acoustic engineer. It says the acoustic engineer will be engaged once completion of the rooftop fit out has been completed. That part of the development has yet to commence.
  6. [141]
    The Tribunal is satisfied, and so finds, that the Commissioner was entitled to impose conditions on the licence approval conditional upon the satisfactory completion of those conditions subsequent to the approval. The Commissioner accepts the submissions of the Commissioner and of MFB. The submissions of the Applicant that the approval of the Commissioner for the grant of the commercial hotel licensed must wait until after an acoustic report has been provided has not been made out on the basis of the statutory framework relating to the grant of such a licence and the evidence that is before the Tribunal does not support those submissions. The Tribunal rejects the Applicants submissions.

Further Matters

  1. [142]
    The Applicant refers to “Further Matters For Completeness” and refers to a range of different issues.[103]

Amenity

  1. [143]
    The first issue relates to the Amenity of the area and the Mayor of the  Cairns Regional Council objection which it submitted “clearly provides cause for caution in granting of this application”.
  2. [144]
    The Commissioner submissions note that the Queensland Police Service had no objection to the application. Further, the Cairns Regional Council originally did not object to the license as is evident from the Minutes of the Ordinary Meeting of the Council dated 26 February 2020. The Council changed its position and objected to the licence in a letter of 4 March 2020 without identifying any apparent reason for the change. The Council later said the objection was made on the grounds that the amenity of the locality would be adversely impacted but provided no evidence of the adverse impact. Thee Commissioner also submits that the Council had no planning concerns with regard to the licensing of the site. The Commissioner also submits that:

any potential risk to the amenity of the area is alleviated by the strict conditions imposed on the grant of the license. It should also be noted that the Council provided no supporting evidence as to why they had concerns. In any event any potential impact on the amenity was comprehensively considered in the CIS.

  1. [145]
    The Tribunal notes that this has already been referred to above when the Council has approved the MCU, with conditions, for the site. There is also the subsequent Council’s statement that the licence application had no impct on the amenity of the site. There is evidence that had amenity been an issue the council planning officers would have taken this matter up in considering the MCU application. Both the Commissioner and MFB refer to conditions limiting noise and the impact on the community in the approval for the liquor licence. The Council, and for that matter the Applicant, has not produced any evidence that there will be any impact on the amenity of the area. All these matters were before the Commissioner at the time of the decision and there is no evidence of any failure to have proper regard to any of these matters. The Tribunal is not satisfied that there is any evidence establishing adverse impacts on the amenity of the LCA. The Tribunal is satisfied that the respective conditions imposed not only on the MCU but on the commercial hotel liquor licence will ameliorate significantly any potential for an adverse impact on the amenity of the area. The Tribunal rejects the Applicants submissions on amenity.

Previous Complaints

  1. [146]
    Another issue raised by the applicant is MFBs previous breaches of conditions regarding outdoor speakers from the hotel site.
  2. [147]
    MFB in its submissions acknowledges that there were two (2) noise complaints under its current accommodation liquor licence held for the site. That accommodation liquor licence does not set noise levels and the new commercial hotel liquor licence will have more restrictive noise limits than currently operates on the site.
  3. [148]
    MFB submissions referred to the allegations of non-compliance in relation to a prior function held on the roof top of the premises and police comments on that matter. Those submissions state:

The police comment was in reference to a temporary approval for a function on the site. The (full) Hotel liquor licence will impose different noise conditions that the Second Respondent will be required to adhere to on a permanent basis. If the Second Respondent exceeds noise levels conditions on the (full) liquor licence, then OLGR can take disciplinary action

  1. [149]
    MFB also referred to the response on Monday, 3 February 2020, by the Far North District Police that they had “no objection” in relation to the proposed commercial hotel licence.
  2. [150]
    The evidence before the Tribunal demonstrates that these previous noise complaints have been explained as the existing liquor licence for the premises (which MFB proposes to surrender if granted the commercial hotel licence) did not have any conditions attached to it relating to noise. The proposed new commercial hotel licence carries significant conditions relating to noise and the hours of operation. No party is suggesting that those conditions would not be enforced either by MFB and its management or the Commissioner or by complaints from the public. The Queensland Police service as recently as 3 February 2020 had no objection to a commercial hotel licence for this site. The Cairns Regional Council had already approved the MCU, with conditions which would affect noise levels emanating from the site following any development. The Tribunal considers for these reasons the Applicants’ submissions relating to previous complaints while factual, have in fact been overtaken by noise limit conditions imposed by the local Council and the also imposed by the Commissioner’s conditions of approval. The Tribunal is not satisfied that there is evidence that there will be any ongoing behaviour by the commercial hotel operators under their current conditions as had occurred during the currency of the accommodation liquor licence. The Tribunal rejects the Applicants’ submissions.

Clear, Compliant and Unbiased Full CIS

  1. [151]
    Another issue referred to by the Applicant relates to the need for a “clear, compliant and unbiased Full CISs and a compliant Acoustic Report.”
  2. [152]
    Both the CIS and acoustic report have already been dealt with and the Applicant in raising these matters again does not introduce any new considerations that need to be dealt with and neither is there any reason for the Tribunal to depart from its earlier findings about the CIS and the acoustic report. The Tribunal rejects this submission relating to the Full CIS.

Objections

  1. [153]
    The Applicant refers to a relatively large volume of objections which adopt “some salient points” which highlight why “nothing short of a pre-approved Acoustic Report was appropriate and that objections should not have been so conveniently dismissed as having little weight”.[104]
  2. [154]
    The Commissioner submits that considerable resources were devoted to reviewing objections and organising an objection conference which is not a legislative requirement. The Commissioner also makes the following submission:[105]

The First Respondent notes that a number of the objections are in similar, if not inexact, terms and are from people who do not reside in the LCA. Whilst the validity of some of the objections are questionable, the First Respondent still considered them. It is submitted that the objectors do not reveal an overall sense from members of the LCA that the development is opposed. There is also evidence of community support for the application

  1. [155]
    The Commissioner submits that responses to the objections were appropriate and deal with the concerns raised by objectors and also states as follows:[106]

the number of objections were outweighed by the other considerations raised in the evidence before the Commissioner; primarily, what was contained in the CIS and other positive impacts on the LCA that were identified in the relevant evidence.

  1. [156]
    The Commissioner rejects the suggestion that the comments of the Mayor of the Cairns Regional Council were disregarded. The Commissioner submits that those comments were still considered but given lesser weight due to:[107]

a failure to explain why the application was inconsistent with the council’s town planning experts; and

why the conditions attached to the development application are not sufficient.

  1. [157]
    MFB submissions referred to discussions about objections received and refers to 125 objections received in response to advertising, 49 additional objections received following advertising and 15 persons attended an objectors conference. It also refers to 60 surveys being a distributed and submits that:[108]
    1. 31 surveys were in support of the application;
    2. 16 surveys were against the application; and
    3. 13 surveys adopted a neutral stance.
  2. [158]
    MFB submits that the surveys demonstrate that 51% were in favour of the application while 26% were against the application and 21% of the surveys were neutral.
  3. [159]
    The evidence before the Tribunal is that advertising took place over an acceptable period of time for the community to lodge objections to the commercial hotel licence. A number of objections were received in response however, OLGR considered that because of the then Covid-19 restrictions that it was appropriate to invite further supplementary objections and then subsequently considered that an Objectors Conference should be held at Palm Cove. That Objectors Conference allowed local objectors to attend and also provided facilities so that interstate and other persons who could not attend personally could participate in the objection conference. A representative of OLGR gave a presentation at the Objectors Conference about the nature and extent of the commercial hotel licence, an opportunity was given to any objectors to state their objections further and a response to objectors was made by a representative of MFB. This process produced considerable quantity of material which was then considered by OLGR. There is no evidence that the process was inadequate or was not fully dealt with in the period from beginning of 2020 through to the time of the Commissioner’s decision. While the Applicant refers to the “salient points” in its submissions the evidence establishes that all of those matters were taken into account and in the final analysis, other considerations outweighed various comments made by objectors. The Tribunal is satisfied that there was an extensive period provided for objectors to lodge their comments in relation to the application and that those objections, whether for or against the application, were considered and taken into account in a consideration of all matters relevant to the grant of the application. The Tribunal is not persuaded by the Applicant that proper attention has not been given to objections by those persons against the granting of the application and rejects the Applicants’ submissions.

Was there Sufficient Information to Support the Commissioner’s Decision?

  1. [160]
    The Applicant submits that the primary conclusion of its submissions is that the s 21 documents do not contain sufficient information to support the Commissioners decision and the correct and preferable decision is unavoidably to set aside that decision and refused the application.
  2. [161]
    To the extent that the Applicants primary conclusion is based upon the submissions relating to the three critical failures and on the submissions for “further matters for completeness” both of those matters have been considered by the Tribunal above and the Applicants Submissions have not been successful. It is not clear from the Applicants’ submissions what other basis there is for the submission that there was insufficient information in the s 21 documents other than the Applicants’ reliance upon Scally’s case.
  3. [162]
    The Commissioner submits that Scally’s case provides the Tribunal with no assistance as the CIS in these proceedings contained the required community consultation. The Commissioner acknowledges that “there were deficiencies in the initial CIS, but the “Full” CIS provided on behalf of the Second Respondent is not deficient and undertook community consultation as required by Guideline 38.
  4. [163]
    Scally’s case has already been referred to above and the relevant discussion about the operation of the CIS was identified. The outcome of the proceedings in Scally’s case was dependent upon its facts. The facts in these current proceedings for the commercial hotel licence are significantly different. An ample time in these proceedings was provided for the notice to objectors, followed by receipt of a significant response from objectors. Those objections were then considered by our OLGR and a further opportunity was provided for supplementary objections which were also considered. Subsequently adequate notice was given for an Objectors Conference which was attended by objectors at Palm Cove and by video link for interstate and other persons unable to personally attend. There was, on the evidence, significant community consultation by OLGR, which also included the participation of MFB. The Tribunal has already found that a Full CIS compliant with the Guideline has already been provided to OLGR. Other reports relating to noise and risk assessment have been made available for a consideration by the Commissioner. The Applicant has contended that the CIS, the absence of a Noise Management plan and the Commissioner’s approval prior to receiving a full Acoustic Report required by Guideline 51 and s 4(2)(d), (3) and (4) of the Liquor Act was premature and resulted in a defective decision. These contentions have already been dealt with and have been dismissed by the Tribunal. Accordingly, while Scally’s case found that there had been insufficient information provided for the making of the decision by the Commissioner, that is not the case in these proceedings. The Tribunal finds that the s 21 documents provided the requisite information required by s 116 and s 121 of the Liquor Act, including information required by the Guidelines, for the Commissioner to make a decision in respect of this commercial hotel licence. The Tribunal finds that there was sufficient information provided to the Commissioner and that the Applicant has not satisfied the Tribunal that relevant necessary information was not provided for the making of the decision. The Tribunal accepts the Commissioner’s submissions and rejects the Applicants’ submissions.

Conclusion.

  1. [164]
    The Tribunal is satisfied on the evidence provided in these proceedings that the Commissioner had sufficient information compliant with the Act and the Guidelines on which to make the decision on 23 December 2020. The Tribunal has rejected the Applicants other arguments there are three critical failures in the application process as well as several other matters it is alleged the Commissioner should have refused the grant of the commercial liquor licence.

Orders.

  1. [165]
    The Tribunal orders that the decision of the Commissioner for Liquor & Gaming Regulation made on 23 December 2020 is confirmed.

Footnotes

[1] GAR081-21, GAR082-21, GAR083-21, GAR086-21, GAR088-21, GAR090-21, GAR091-21, GAR092-21, GAR094-21.

[2] Respondent’s Statement of Reasons filed 27 April 2021 at page 266.

[3] Respondent’s Statement of Reasons filed 27 April 2021 at page 122–137.

[4] Respondent’s Statement of Reasons filed 27 April 2021 at page 124.

[5] Respondent’s Statement of Reasons filed 27 April 2021 at pages 173–179 (the “conditions are set out at page 176), 181–185 (Development Pemit) & 186-190 (s 63 of Planning Act 2016).

[6] Respondent’s Statement of Reasons filed 27 April 2021 at page s 103–121.

[7] Respondent’s Statement of Reasons filed 27 April 2021 at page 203.

[8] Respondent’s Statement of Reasons filed 27 April 2021 at page 692.

[9] Respondent’s Statement of Reasons filed 27 April 2021 at page 211.

[10] Respondent’s Statement of Reasons filed 27 April 2021 at page 267.

[11] Respondent’s Statement of Reasons filed 27 April 2021 at page 267.

[12] Respondent’s Statement of Reasons filed 27 April 2021 at page 23-30.

[13] Respondent’s Statement of Reasons filed 27 April 2021 at page 22 & 223.

[14] Respondent’s Statement of Reasons filed 27 April 2021 at page 237–240.

[15] Respondent’s Statement of Reasons filed 27 April 2021 at page 7.

[16] Respondent’s Statement of Reasons filed 27 April 2021 at page 7–8.

[17] Respondent’s Statement of Reasons filed 27 April 2021 at page 541.

[18] Respondent’s Statement of Reasons filed 27 April 2021 at page 687.

[19] Respondent’s Statement of Reasons filed 27 April 2021 at page 688.

[20] Respondent’s Statement of Reasons filed 27 April 2021 at page 254.

[21] Respondent’s Statement of Reasons filed 27 April 2021 at page 255.

[22] Respondent’s Statement of Reasons filed 27 April 2021 at page 259.

[23] Respondent’s Statement of Reasons filed 27 April 2021 at page 33-34 & 260-261.

[24] Respondent’s Statement of Reasons filed 27 April 2021 at page 262.

[25] Respondent’s Statement of Reasons filed 27 April 2021 at pages 14–16.

[26] Respondent’s Statement of Reasons filed 27 April 2021 at pages 100–101.

[27] (2019) QCAT 387.

[28] Respondent’s Statement of Reasons filed 27 April 2021 at page 692–693.

[29] Respondent’s Statement of Reasons filed 27 April 2021 at page 779–780.

[30] Respondent’s Statement of Reasons filed 27 April 2021 at page 37–41.

[31] Respondent’s Statement of Reasons filed 27 April 2021 at page 783–784.

[32] Respondent’s Statement of Reasons filed 27 April 2021 at page 783–792.

[33] Respondent’s Statement of Reasons filed 27 April 2021 at page 138–171.

[34] Respondent’s Statement of Reasons filed 27 April 2021 at page 42–47.

[35] Respondent’s Statement of Reasons filed 27 April 2021 at page 1.

[36] Respondent’s Statement of Reasons filed 27 April 2021 at page 809.

[37] QCAT Act s 9.

[38] Liquor Act s 21(1)(a).

[39] Liquor Act s 21(1)(d).

[40] Liquor Act s 30.

[41] Liquor Act s 33.

[42] Liquor Act s 34.

[43] QCAT Act s 19.

[44] QCAT Act s 20.

[45] QCAT Act s 24.

[46] Tribunal Directions made on 17 August 2021, 6 September 2021 and 11 April 2022.

[47] Applicants’ Submissions filed 9 May 2022 at paragraph 6.

[48] Applicants’ submissions filed 9 May 2022 at paragraph 7.

[49] Applicants’ Submissions filed 9 May 2022 at paragraphs 12 pages 4-8.

[50] (2019) QCAT 387.

[51] at paragraph 37.

[52] at paragraph 46.

[53] at paragraph 63.

[54] at paragraph 64.

[55] Applicants’ Submissions filed 9 May 2022 at paragraph 15–19.

[56] Commissioner’s Submissions filed 23 May 2022 at paragraph 14.

[57] Commissioner’s Submissions filed 23 May 2022 at paragraph 15 referring to s 3 of the Liquor Act.

[58] Commissioner’s Submissions filed 23 May 2022 at paragraph 18.

[59] Respondent’s Statement of Reasons filed 27 April 2021 at page 138–171.

[60] Commissioner’s Submissions filed 23 May 2022 at paragraph 19 on pages 5–7.

[61] Commissioner’s Submissions filed 23 May 2022 at paragraphs 21–23.

[62] MFB's Submissions filed 24 May 2022 at paragraph 20.

[63] MFB's Submissions filed 24 May 2022 at paragraphs 21–24.

[64] MFB's Submissions filed 24 May 2022 at paragraph 25–26.

[65] MFB's Submissions filed 24 May 2022 at paragraph 27.

[66] MFB’s Submissions filed 24 May 2022 at paragraph 28–30.

[67] s 116(7) of the Liquor Act.

[68] s 116(9) of the Liquor Act.

[69] s 42A of the Liquor Act.

[70] (2019) QCAT 387.

[71] at paragraph 46.

[72] Applicants’ submissions filed on 9 May 2022 at paragraph 12.

[73] MFB obtained a further Community Impact Statement for its application from Commercial Leasing Specialists on 21 October 2020.

[74] Respondent’s Statement of Reasons filed 27 April 2021 at page 150–152.

[75] Respondent’s Statement of Reasons filed 27 April 2021 at page 798.

[76] Respondent’s Statement of Reasons filed 27 April 2021 at page 147, paragraph 4.2.3.

[77] Respondent’s Statement of Reasons filed 27 April 2021 at page 147, paragraph 4.2.4.

[78] Respondent’s Statement of Reasons filed 27 April 2021 at page 148, paragraph 4.2.5.

[79] Respondent’s Statement of Reasons filed 27 April 2021 at page 148, paragraph 4.2.7.

[80] Respondent’s Statement of Reasons filed 27 April 2021 at page 148, paragraph 4.2.8.

[81] Respondent’s Statement of Reasons filed 27 April 2021 at page 149, paragraph 4.2.10.

[82] Respondent’s Statement of Reasons filed 27 April 2021 at page 149, paragraph 4.2.12.

[83] Respondent’s Statement of Reasons filed 27 April 2021 at page 150, paragraph 4.2.13.

[84] Respondent’s Statement of Reasons filed 27 April 2021 at page 153, paragraph 5.2.

[85] Respondent’s Statement of Reasons filed 27 April 2021 at page 154, paragraph 5.3.

[86] MFB's submissions filed 24 May 2022 at paragraph 22.

[87] MFB's submissions filed 24 May 2022 at paragraph 27.

[88] Applicant’s submissions filed 9 May 2022 at paragraphs 15–17.

[89] Applicant’s submissions filed 9 May 2022 at paragraph 13.

[90] Applicants’ Submissions filed 9 May 2022 at paragraph 20. Act

[91] Respondent’s Statement of Reasons filed 27 April 2021 at page 176.

[92] Applicants’ Submissions filed 9 May 2022 at paragraph 20(c).

[93] Applicants’ Submissions filed 9 May 2022 at paragraph 22.

[94] Applicants’ submissions filed on 9 May 2022 at paragraph 33 & 34.

[95] MFB’s Submissions filed 24 May 2022 at paragraph 44–45.

[96] Applicants’ Submissions filed 9 May 2022 at paragraph 24.

[97] Applicants’ Submissions filed 9 May 2022 at paragraph 26.

[98] Liquor Act s 123(2).

[99] MFB’s Submissions filed 24 May 2022 at paragraph 42.

[100] MFB’s Submissions filed 24 May 2022 at paragraph 46.

[101] Respondent’s Statement of Reasons filed 27 April 2021 at page 809.

[102] Liquor Act s 123 (2).

[103] Applicants Submissions filed 6 June 2022 at paragraphs 29–40.

[104] Applicants Submissions filed 6 June 2022 at paragraphs 35–40.

[105] Commissioner’s Submissions filed 23 May 2022 at paragraph 28.

[106] Commissioner’s Submissions filed 23 May 2022 at paragraph 30.

[107] Commissioner’s Submissions filed 23 May 2022 at paragraph 47.

[108] MFB's Submissions filed 24 May 2022 at paragraphs 23 and 24.

Close

Editorial Notes

  • Published Case Name:

    Reef House Property Pty Ltd & Ors v Commissioner for Liquor and Gaming Regulation & Anor

  • Shortened Case Name:

    Reef House Property Pty Ltd v Commissioner for Liquor and Gaming Regulation

  • MNC:

    [2023] QCAT 389

  • Court:

    QCAT

  • Judge(s):

    Member Carrigan

  • Date:

    15 Sep 2023

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2023] QCAT 38915 Sep 2023Application to review Commissioner of Liquor and Gaming Regulation's decision to provisionally approve application for commercial hotel licence; Commissioner's decision confirmed: Member Carrigan.
Appeal Determined (QCA)[2024] QCA 12121 Jun 2024Appeal dismissed: Flanagan JA (Mullins P and Bradley J agreeing).

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Scally v Commissioner for Liquor and Gaming [2019] QCAT 387
4 citations
Jump To
Cite 1 - [2019] QCAT 387
Cite 2 - [2019] QCAT 387
Cite 3 - [2019] QCAT 387
Cite 4 - [2019] QCAT 387
Staddon and Ors v Chief Executive, Department of Employment, Economic Development and Innovation and Anor [2011] QCAT 258
1 citation
Jump To
Cite 1 - [2011] QCAT 258

Cases Citing

Case NameFull CitationFrequency
Reef House Property Pty Ltd v Commissioner of Liquor and Gaming Regulation [2024] QCA 121 2 citations
1

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