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BOA Capital Pty Ltd v Commissioner for Liquor and Gaming[2023] QCAT 53

BOA Capital Pty Ltd v Commissioner for Liquor and Gaming[2023] QCAT 53

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

BOA Capital PTY LTD v Commissioner for Liquor and Gaming and Anor [2023] QCAT 53

PARTIES:

BOA Capital PTY LTD

(applicant)

v

Commissioner for Liquor and Gaming

(respondent)

The Grosvenor The Valley Pty Ltd t/as The Grosvenor The Valley

(respondent)

APPLICATION NO/S:

GAR083-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

25 January 2023

HEARING DATE:

27 September 2022

HEARD AT:

Brisbane

DECISION OF:

Member Poteri

ORDERS:

I confirm the decision of the Commissioner made on 29 January 2020 to grant The Grosvenor the Valley Pty Ltd T/as The Grosvenor the Valley an Adult Entertainment Permit

CATCHWORDS

General Administrative Review – Licencing for an Adult Entertainment Permit – Suitability of the Applicant to be granted an Adult Entertainment Permit – Objectors allege that the granting of the Adult Entertainment Permit will adversely affect the character of the locality and the amenity of the community – Objectors allege that the granting of the Adult Entertainment Permit will cause disturbance to persons who reside, work or do business in the locality, or to persons in, or travelling to and from, an existing place of public worship, hospital, school, or other facility or place regularly frequented by children for cultural or recreational activities – Whether an objector can raise the issue of the suitability of an applicant as a valid ground for an objection.

Bad Girls Maroochydore P/L v Chief Executive of Dept of Tourism , Racing & Fair Trading & Anor [2004] QCA 45

Giribon v Commissioner for Liquor and Gaming & Anor [2018] QCAT 169

Hermitage Trading Pty Ltd v Commissioner For Liquor and Gaming & Anor [2019] QCAT 407

Liquor Act 1992 (Qld), s 3, s 4, s 21, s 33, s 105B, s 107D, s 119, s 121

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24

APPEARANCES & REPRESENTATION:

 

Applicant

Mr DM Favell of Counsel

Respondents

Mr S Formby of Counsel for Commissioner for Liquor and Gaming

Mr CD Myers, legal representative for The Grosvenor The Valley PTY LTD t/as The Grosvenor The Valley

REASONS FOR DECISION

  1. [1]
    On 29 January 2020 a delegate of the Commissioner for Liquor and Gaming (Commissioner) approved an application (Decision) by the Second Respondent, The Grosvenor the Valley Pty Ltd trading as Grosvenor the Valley (Grosvenor), for an Adult Entertainment Permit (AEP) in relation to premises situated at 206 Wickham Street, Fortitude Valley (Premises) within the Fortitude Valley Safe Night Precinct (Valley SNP).
  2. [2]
    On 2 March 2020 BOA Capital Pty Ltd (BOA) filed an application in the Tribunal to review the Decision. (Exhibit 2)
  3. [3]
    The application was heard before me on 27 September 2022 where all parties were legally represented.
  4. [4]
    I am reviewing the Decision pursuant to ss 21 and 33 of the Liquor Act 1992 (Qld) (‘LA’). That is, I must hear and decide the review by way of a consideration of the evidence before the Commissioner when the Decision was made. Also, I must decide the review in accordance with the law that applied to the making of the Decision.
  5. [5]
    Relevant provisions of the LA are ss 3, 21, 33, 103Q, 105B, 107D, 119, 121.
  6. [6]
    These provisions are outlined:

3 Main purposes of Act

The main purposes of this Act are—

  1. (a)
    to regulate the liquor industry, and areas in the vicinity of licensed premises, in a way compatible with—
  1. (i)
    minimising harm, and the potential for harm, from alcohol abuse and misuse and associated violence; and

Examples of harm—

  • adverse effects on a person’s health
  • personal injury
  • property damage
  1. (ii)
    minimising adverse effects on the health or safety of members of the public; and
  1. (iii)
    minimising adverse effects on the amenity of the community; and
  1. (b)
    to facilitate and regulate the optimum development of the tourist, liquor and hospitality industries of the State having regard to the welfare, needs and interests of the community and the economic implications of change; and
  1. (c)
    to provide for the jurisdiction of the tribunal to hear and decide reviews of certain decisions under this Act; and
  1. (d)
    to provide for a flexible, practical system for regulation of the liquor industry of the State with minimal formality, technicality or intervention consistent with the proper and efficient administration of this Act; and
  1. (e)
    to regulate the sale and supply of liquor in particular areas to minimise harm caused by alcohol abuse and misuse and associated violence; and
  1. (f)
    to regulate the provision of adult entertainment; and
  1. (g)
    to provide revenue for the State to enable the attainment of this Act’s main purposes and for other purposes of government.

21 Jurisdiction and powers of tribunal

  1. (1)
    The tribunal may review the decisions of the commissioner in relation to—
  1. (a)
    the grant or refusal of a licence or permit or the renewal of an extended hours permit; or
  1. (b)
    a review decision under section 142P; or
  1. (c)
    the refusal to grant an approval for a controller under section 142ZK; or
  1. (d)
    the specification of conditions in a licence or permit; or
  1. (e)
    an extended trading hours approval including the grant, refusal to grant or cancellation of the approval or any variation of the conditions of the approval; or
  1. (f)
    the giving of a compliance notice under section 142ZZD; or
  1. (g)
    a request under section 142ZZD(8) to amend or revoke a compliance notice; or
  1. (h)
    the extension of a period of time under section 155AD(7)(b); or
  1. (i)
    the payment of a fee by instalments under section 209; or
  1. (j)
    the taking of disciplinary action relating to a licence, the suspension (including urgent suspension) or cancellation of a licence or permit or the imposition or variation of the conditions of a permit; or
  1. (k)
    the surrender of a licence or permit; or
  1. (l)
    the suspension, continued suspension or cancellation of an approval for a controller under section 142ZV; or
  1. (m)
    the grant or refusal of an authorisation under this Act; or
  1. (n)
    an order directed to a licensee or permittee or a person holding an authorisation under this Act; or
  1. (o)
    the refusal to grant an application to change an approved risk-assessed management plan; or
  1. (p)
    a direction to change an approved risk-assessed management plan under section 52A; or
  1. (q)
    the refusal to grant an application for an approval as an approved manager; or
  1. (r)
    the refusal to renew an approval as an approved manager; or
  1. (s)
    the suspension or cancellation of an approval as an approved manager; or
  1. (t)
    a refusal to give an approval mentioned in section 153(1) or (3); or
  1. (u)
    a withdrawal of an approval under section 139D; or
  1. (v)
    a fee payable in respect of a licence; or
  1. (w)
    allotment or apportionment of liability for payment, or entitlement to refund, of a fee in respect of a licence or permit; or
  1. (x)
    a decision for which an information notice must be given under part 6AA; or
  1. (y)
    a decision to refuse, vary or revoke an exemption from the restriction on the sale of rapid intoxication drinks under section 155AK or 155AP.
  1. (2)
    In exercise of its jurisdiction, the tribunal—
  1. (a)
    has—
  1. (i)
    the powers and discretions of the commissioner in respect of the matter under review; and
  1. (ii)
    the powers otherwise conferred on it by this Act; and
  1. (b)
    has the duties imposed by this Act on the commissioner in respect of the matter under review; and
  1. (c)
    is subject to the limitations imposed by this Act on the commissioner in respect of the matter under review.

33 Tribunal to decide review on evidence before the commissioner

  1. (1)
    In a proceeding for a review of a decision of the commissioner by the tribunal, the tribunal must—
  1. (a)
    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
  1. (b)
    decide the review of the decision in accordance with the same law that applied to the making of the original decision.
  1. (2)
    If the tribunal decides, under the QCAT Act, section 139, that a proceeding for a review of a decision should be reopened, the issues in the proceeding that are reheard, must be—
  1. (a)
    heard and decided by way of a reconsideration of the evidence given in the proceeding for the review of the decision; and
  1. (b)
    decided in accordance with the same law that applied to the making of the original decision.
  1. (3)
    In this section—

original decision means the decision of the commissioner to which the proceeding for the review relates.

this Act and the following requirements while adult entertainment is being provided in the area—

  1. (a)
    the area must be fully enclosed in a way that prevents a person outside the area from seeing inside the area;
  1. (b)
    the area must not contain, for the private use of persons attending the entertainment, a lounge, booth, compartment or cubicle (other than a toilet

105B Application for adult entertainment permit requires local government consent

  1. (1)
    An application for an adult entertainment permit may be made only with the consent of the local government for the area in which the relevant premises are located.
  1. (2)
    The application must include, or be accompanied by, the written consent or written evidence of the consent.
  1. (3)
    However, subsection (1) does not apply to an application for an adult entertainment permit if—
  1. (a)
    an adult entertainment permit (the previous permit) was previously granted for the relevant premises; and
  1. (b)
    the application is made before, or no later than 30 days after, the previous permit expires.
  1. (4)
    Also, subsection (1) does not apply if the local government abstains, in writing, from consenting to the application.
  1. (5)
    In this section—

consent, of a local government to an application for an adult entertainment permit, does not include a development approval for the relevant premises.

relevant premises means the premises in relation to which the adult entertainment permit is sought.

107D Restriction on grant of adult entertainment permit

  1. (1)
    The commissioner may grant an application for an adult entertainment permit only if the commissioner is satisfied that—
  1. (a)
    the applicant is a suitable person to provide adult entertainment in licensed premises (the relevant premises) or premises to which a community liquor permit or restricted liquor permit relates (also the relevant premises); and
  1. (b)
    after considering that, if the application were granted, the combined total of licensed brothels and premises permitted to provide adult entertainment in the locality in which the relevant premises are situated would not substantially affect the character of the locality; and

Example of character of locality being substantially affected—

locality becoming a ‘red light district’

  1. (c)
    the proposed approved area for the entertainment conforms with the requirements of section 103Q; and
  1. (d)
    the applicant has submitted a proposed management plan in the approved form that provides for any matters prescribed under a regulation.
  1. (2)
    Without limiting subsection (1), the commissioner must have regard to any comments of the relevant local government or police district officer received under section 117(2)(a).

119 Objection by member of public to grant of applications

  1. (1)
    If notice of an application is published as required by section 118, any member of the public may object to the grant of the application, by writing filed with the commissioner on or before the last day for filing of objections as specified in the notice.
  1. (2)
    An objection may be made individually or by petition.
  1. (3)
    The grounds on which an objection about an application, other than an application for an adult entertainment permit, may be made are that, if the application were granted, 1 or more of the following may happen—
  1. (a)
    undue offence, annoyance, disturbance or inconvenience to persons who reside, work or do business in the locality concerned, or to persons in, or travelling to or from, an existing or proposed place of public worship, hospital or school;
  1. (b)
    harm from alcohol abuse and misuse and associated violence;
  1. (c)
    an adverse effect on the health or safety of members of the public;
  1. (d)
    an adverse effect on the amenity of the community.
  1. (4)
    The grounds on which an objection about an application for an adult entertainment permit may be made are that, if the application were granted, 1 or more of the following may happen—
  1. (a)
    undue annoyance, disturbance or inconvenience to persons who reside, work or do business in the locality concerned, or to persons in, or travelling to or from, an existing or proposed place of public worship, hospital, school, or other facility or place regularly frequented by children for cultural or recreational activities;
  1. (b)
    harm from alcohol abuse and misuse and associated violence;
  1. (c)
    an adverse effect on the health or safety of members of the public;
  1. (d)
    an adverse effect on the amenity of the community.
  1. (5)
    In subsection (1)—

member of the public means any adult individual or body of persons that in the commissioner’s opinion—

  1. (a)
    has a proper interest in the locality concerned; and
  1. (b)
    is likely to be affected by the grant of the application.
  1. (i)
    the liquor service points; and
  1. (ii)
    how the area will be fully enclosed to prevent a person outside the area from seeing inside the area; and
  1. (iii)
    the audience seating area; and
  1. (iv)
    any stage area and how it will be separated from the audience; and
  1. (v)
    the performers’ change rooms;
  1. (b)
    the minimum number of staff and security persons who will be on duty in the area during performances;
  1. (c)
    the name and contact details of the promoter of the adult entertainment.

121 Matters the commissioner must have regard to

In deciding whether to grant the application, the commissioner must have regard to—

  1. (a)
    if a community impact statement is required to be given for the application under section 116—
  1. (i)
    the matters mentioned in section 116(8); and
  1. (ii)
    the public interest in so far as it relates to the main purpose of this Act mentioned in section 3(a) or the impact on the amenity of the community; and
  1. (b)
    an objection to the grant of the application made under section 117, 119 or 119A; and
  1. (c)
    comments made in relation to the application under section 117; and
  1. (d)
    the impact on the amenity of the community concerned; and
  1. (e)
    for an application for an extended trading hours approval mentioned in section 86(1)—
  1. (i)
    the previous conduct of the applicant in discharging any duties under this Act previously placed on the applicant, especially for the premises for which the extension is sought; and
  1. (ii)
    the applicant’s ability to control the noise and behaviour of the number of persons that could reasonably be expected to be on and in the vicinity of the premises if the extension were granted; and
  1. (iii)
    the suitability of the premises and its facilities for the purpose for which the extension is sought; and
  1. (f)
    any relevant conditions imposed on a development approval that relates to premises the subject of the application.
  1. [7]
    The material that was before the Commissioner for the making of the Decision is contained in the Commissioner’s statement of reasons (pages 1 to 537) dated 14 April 2020 and filed in the Tribunal on 14 April 2020. The submissions of the Commissioner refer to this material as the bundle of relevant documents (BoRD). I will also refer to this material as the BoRD.
  2. [8]
    An application for a permit is made pursuant to the provisions of s 105 of the LA. Grosvenor lodged their application on 29 April 2019. All parties to these proceedings agree that the application has been made pursuant to this provision. However, BOA has submitted that pursuant to s 24(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) the Tribunal should set aside the Decision and substitute in its place, a decision refusing the application for AEP made by Grosvenor. BOA have raised three reasons why the application should be refused. In brief they are:
    1. (a)
      That pursuant to s 121 of LA the Commissioner did not have proper regard for the impact the AEP will have on the amenity of the community; and
    2. (b)
      That pursuant to s 107D(1)(b) of the LA the AEP would substantially affect the character of the locality having regard to the requirements set out in ss 119(4)(a) and 119(4)(d) of the LA; and
    3. (c)
      That pursuant to ss 107D and 107E of the LA Act the Commissioner failed to satisfy itself that the Grosvenor (and its associates) was a suitable person to hold an AEP.

Preliminary Legal Issue

  1. [9]
    For the purposes of the LA, BOA is “a member of the public” as set out is s 119(5) of the LA.
  2. [10]
    BOA lodged an objection dated 12 June 2019 (pages 132 to 342 of the BoRD) pursuant to s 119(2) of the LA. On page 1 of the letter of objection (page 134 of BoRD) BOA confirm that it is lodging the objection pursuant to s 119 of the LA. The objection raises the issue of the suitability of Grosvenor to be granted an AEP. The grounds on which an objection can be made are set out in s 119(4) of the LA. The grounds do not include the ground that an applicant is not suitable to be granted an AEP.
  3. [11]
    It is my view that BOA cannot lodge an objection regarding the suitability of Grosvenor to be granted an AEP and any material lodged by BOA regarding this issue is not relevant in this review. This interpretation of the relevant legislation is outlined in paragraphs 53 to 55 of the decision Hermitage Trading Pty Ltd v Commissioner for Liquor and Gaming & Anor [2019] QCAT 407.
  4. [12]
    I can have regard to any material submitted to the Commissioner by officers of the Commissioner regarding this issue.
  5. [13]
    This legal issue was not canvassed by any party or counsel at the hearing.

Commissioner’s Material

  1. [14]
    The Commissioner's report (Report) and the attached character/amenity Assessment (Assessment) are on pages 457 to 465 of the BoRDs. The report contains comments on the following:
    1. (a)
      Suitability of Grosvenor to be a licensee; and
    2. (b)
      The issues with the character of the locality; and
    3. (c)
      The amenity of the community.
  2. [15]
    The material contains:
    1. (a)
      Letters of objection (pages 132 to 387 of the BoRD); and
    2. (b)
      The concerns of BOA; and
    3. (c)
      The report from the objections conference July 2019 (pages 392 to 396 of BoRD); and
    4. (d)
      The 12 December 2019 investigation by the Office of Liquor Gaming and Regulation (OLGR) (pages 102 to 131 of the BoRD); and
    5. (e)
      The December 2019 compliance report (pages 74 to 75 of the BoRD).
  3. [16]
    An applicant for an AEP must satisfy the requirements set out in Ss 107D and 103Q. In brief these provisions require:
    1. (a)
      The applicant must be a suitable person.
    2. (b)
      The proposed AEP, together with all the other AEPs, will not affect the character of the locality. s 107D of LA
    3. (c)
      An AEP must be fully enclosed which prevents a person outside from seeing inside. There are other requirements. S 103Q of the LA and the Adult Entertainment Code.
  4. [17]
    An objection may be made by a member of the public on grounds that are set out in s 119(4) of LA.

Amenity and Character

  1. [18]
    Amenity of a community is set out in s 4 of the LA I outline this provision:

4 Definitions

In this Act—

…

amenity, of a community or locality, means—

  1. (a)
    the atmosphere, ambience, character and pleasantness of the community or locality; and
  1. (b)
    the health and safety of persons who live in, work in or visit the community or locality and the comfort or enjoyment they derive from the community or locality.

s 4 def amenity in s 2010 No. 51 s 20

…

  1. [19]
    “Character” is not defined in the LA. In s 107D(b) of the LA contains an example of the locality being substantially affected – locality becoming a red light district.
  2. [20]
    “Character” is one limb or one aspect of “amenity”
  3. [21]
    This issue was discussed in Bad Girls Maroochydore v Chief Executive of the Department of Tourism, Racing & Fair Trading & Anor [2004] QCA 45.
  4. [22]
    At paragraphs 17, 18, 19 and 21 the Court held that:

[17] In Broad v Brisbane City Council and The Baptist Union of Queensland, this Court determined that the concept of amenity is wide and flexible and may embrace not only the physical effect of a place on the senses but also the residents' subjective perception of the locality. Thomas J, (as he then was), (with whom Connolly J agreed), observed that reference to valid perceptions, not simply as those of an individual, but as valid perceptions likely to be held by an ordinary person in the neighbourhood, does not reveal regard to any improper subjectivity. His Honour continued:

"The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce. All counsel agreed that the provision of a funeral parlour was a good example of an institution which, whilst discreet in its conduct and relatively small in its production of physical consequences, would be likely to have an effect in the way of 'atmosphere'. Whether this is described as prejudice or otherwise does not matter. It is a recognisable and normal enough perception of the ordinary resident.

These remarks are not intended to encourage resort to vague statements as justification for an irrational conclusion. But it is necessary to recognise that some matters in this area, although intangible and difficult to articulate, may be real and may properly [be] taken into account."

[18] de Jersey J, (as he then was), with whom Connolly J also agreed, observed that objectors other than Mrs Broad were able to point to concrete factual reasons for their objection, whereas Mrs Broad referred to "the feeling of the street" being affected by "the air of an institution". de Jersey J found that the use of this evidence to uphold the objection did not involve any error of law:

"… such a subjective view need not necessarily be disregarded. Very often, of course, the evidence of such a view would be accorded little if any weight. In forming his own view on the likely effect of a proposed development on the amenity of an area, a Judge would I think ordinarily prefer views from residents which find justification in specific, concrete likely effects of the proposed development.

But as I have said I would not exclude evidence of more subjectively based views as being necessarily irrelevant, although in the end a Judge may well accord them little weight. In light of that view, the Council has not in my opinion established an error of law, whatever the extent to which his Honour's decision was in fact influenced by Mrs Broad's evidence.

…

There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident's subjective perception of his locality. Knowing the use to which a particular site is or may be put may affect one's perception of amenity."

[19] Thomas and de Jersey JJ's observations were approved in Novak v Woodville City Corporation where Jacobs J, with whom Cox and Prior JJ agreed, added:

"many planning judgments, not least those which have to assess a planning proposal in terms of its impact upon the amenity of a particular locality, necessarily involve a subjective element, leaving room for opinions to differ in weighing the same objective criteria."

[21] The fact-finding process of determining whether objections establish that the amenity of a locality would be lessened involves the application of these principles but sometimes differing conclusions may be open on the same material. The Tribunal was a specialist body. It determined that the perceptions of the objectors were that the amenity of the neighbourhood would be lessened by the granting of the AEP to Bad Girls and that those were valid perceptions which an ordinary person in the neighbourhood would be likely to hold. That reasoning was consistent with the established principles set out earlier. Consistent with Broad, it may be a valid and reasonably held perception that the amenity of a locality with an AEP licensed nightclub, where entertainment of the most sexually explicit character lawfully permitted other than in a brothel occurs, is less than the amenity of a locality with that nightclub merely providing cabaret entertainment without exposure of the genitals, even though there is no difference to the physical environment of the locality. The Tribunal was entitled to consider the reasonably held perceptions of the 500 or so objectors in concluding that Bad Girls with an AEP would lessen the amenity of the locality even though the objections were not sustainable under s 119(4)(a) of the Act.

  1. [23]
    At the relevant time:
    1. (a)
      The Premises were situated at 206 Wickham Street Fortitude Valley which is within the Fortitude Valley Safe Night Precinct (Valley SNP). This is a well known nightclub, restaurant, hotel/bar and a late night entertainment precinct; and
    2. (b)
      SNPs are a Queensland Government initiative in an endeavour to reduce late night drug and alcohol related violence; and
    3. (c)
      There are multiple licensed premises in the vicinity – some of which have AEPs; and
    4. (d)
      There were 6 existing and provisional AEPs in the Valley SNP; and
    5. (e)
      Grosvenor is restoring a run-down building.
  2. [24]
    If the AEP is granted, the relevant legislation and permit conditions require:
    1. (a)
      The adult entertainment area will be wholly confined within a nightclub; and
    2. (b)
      There will be no graphic advertising; and
    3. (c)
      Outside the premises there will be very little to indicate what is occurring inside the premises; and
    4. (d)
      S 103Q of the LA and conditions of the permit require Grosvenor to ensure that the approved area in the Premises is enclosed and prevents a person outside the area from seeing inside the area; and
    5. (e)
      Pursuant to the conditions of the permit Grosvenor must ensure that there is sufficient lighting to ensure controllers can properly supervise the entertainment and patron behaviour; and
    6. (f)
      No spruiking and touting for business at, outside or in the proximity of the Premises; and
    7. (g)
      Grosvenor must keep a register of controllers; and
    8. (h)
      Any patrons waiting to enter the nightclub area are not visible from the footpath and there is no queuing at the entrance to the Premises. I note that the plan on page 76 of the BoRD shows that there is a large area which is approximately 22 metres long before patrons reach the entrance to the nightclub.
  3. [25]
    The nearest licenced brothels are situated at Newstead which is approximately 2 to 3 kilometres away from the Premises and the SNP.

Council

  1. [26]
    The Council approved Grosvenor’s development application of the Premises in March 2019.
  2. [27]
    The consultation and correspondence with the Council, Grosvenor and the Commissioner is contained in pages 55 to 63 of BoRD. In a letter dated 26 April 2019 (pages 62 and 63 of the BoRD) the Commissioner is advised that the Council is abstaining in accordance with s 105B(4) of the LA. Accordingly S 105B(1) of LA does not apply to Grosvenor’s application for an AEP.

Objections

  1. [28]
    The objection lodged by BOA is set out in pages 132 to 342 of the BoRD. Objections were lodged by other persons and a list of these objections is outlined on page 344 of the BoRD.
  2. [29]
    15 objections were received.
  3. [30]
    13 objections were in the same format with the same typographical error on line 3 in the 6th last paragraph (“ahs” has been typed instead of “has”). These objections raise the same issues:
    1. (a)
      harm from alcohol abuse and misuse and associated violence; and
    2. (b)
      an adverse effect on the health or safety of members of the pubic; and
    3. (c)
      an adverse effect on the amenity of the community; and
    4. (d)
      substantially affect the character of the locality by turning the locality into a red light district; and
    5. (e)
      cause undue annoyance, disturbance or inconvenience to persons who reside, work or do business in the locality, or to persons in, travelling to or from, an existing place of public worship, hospital or school.
  4. [31]
    Janet Crews lodged an objection mainly focussing on her belief that Fortitude Valley is in a state of transition and that this AEP may have an effect on retirement high rises at Newstead and Howard Smith wharf. Ms Crews also refers to the Valley State High School.
  5. [32]
    Ms Crews also says in her objection that the presence of adult entertainment venues in the Valley have diminished. She says that the demographics of Fortitude Valley are changing. This is in contrast to the other objections, which includes the objection of BOA, that the AEP will be the tipping point to transform the Valley SNP into a red light district.
  6. [33]
    Ms Crews is a resident of McWhirters building which is near the Premises. She says that this AEP may impact on the value of her property and the AEP may impact on persons travelling to and from the railway station. Ms Crews also does not accept that renovation of a derelict building will have a positive impact on the locality.
  7. [34]
    An objectors' conference was held on 11 July 2019. A report of this conference is contained on pages 392 to 396 of the BoRD. No resolution was reached at the conference.
  8. [35]
    The objections conference report outlines comments from certain of the objectors made at the conference as follows:
    1. (a)
      Paul McGarry (Gary), who is the owner of Subrosa, which is a music venue, is concerned about the direction of the Valley turning into a red light district and he sees the AEP venues as a barrier to new clientele. “Punters” do not want to walk from Brunswick Street. He says that it has become a gauntlet; and
    2. (b)
      Fletcher Potanin who is a building owner on Brunswick Street agrees with the comments of Paul (McGarry) and, mentions the large area of the AEP; and
    3. (c)
      May Wong who is a worker in an office in the area says that she is looking for a more balanced transformation of the area and she mentions the stigma of the Valley being unsafe. She also raised the issue of parking and says that clients do not want to come in to see them. Ms Wong says that she wants more venues that will complement the Valley Music Hall which she says is opening soon; and
    4. (d)
      Ms Crews says that the Valley is a live music precinct, mentioned the new high school, upgrades to the station, she would like to see the value of her apartment increase and disagrees with regard to the issue of the restoring of the run down building.
  9. [36]
    It is noted that none of the objectors, except for BOA, provided any analytical or other evidence to support their objections or comments. The lack of analytical evidence does not preclude a member of the public from making a valid objection. As a matter of law such an objection in these types of proceedings can be based on the objector’s perception of the “atmosphere” of a locality. See paragraph 17 of the Maroochydore Bad Girls matter. The question is what weight does a decision maker give to these types of objections? It also follows that the Commissioner or a decision maker can take these public perceptions issues into account when making a decision in these types of proceedings.
  10. [37]
    The objectors say that the granting of the AEP will tend to transform the character of the locality into a red light district because it will increase the number of AEPs and substantially increase the total floor area of AEPs. Also, that the AEP will affect the amenity of the community. As previously mentioned, Ms Crews raised some slightly different issues such as the aesthetics of the area, the potential decrease in the value of her residence and that the presence of AEPs in Fortitude Valley is diminishing.
  11. [38]
    The small number of objections in such a concentrated multi use area that is the Valley SNP contrasts to the number of objections in the matter of Bad Girls Maroochydore where the Tribunal found there were more than 500 objections. Bad Girls Maroochydore was decided in 2004 and “amenity” was not defined in the relevant legislation at that time. Also, the matter of Broad v Brisbane City Council and Baptist Union of Queensland [1986] 2QdR 317 was discussed in the Bad Girls Maroochydore matter. These decisions are applicable to these proceedings and the law outlined in these matters gives guidance on how to treat these types of applications and objections.

Floor Area

  1. [39]
    At the hearing there was discussion about the floor area of the Premises. There is a conflict in the floor area of the Premises and another proposed venue (as indicated by the Commissioner, BOA and BOA’s consultant Urban Economics). Further, there is even a difference in the relevant floor area of the AEP as submitted by BOA and Urban Economics (EU).
  2. [40]
    As shown by the plan of the Premises on page 76 of the BoRD the external floor area of the AEP is some 858m2.This includes offices and change rooms. The actual floor area of the AEP of the Premises is 575m2.This figure was discussed at the objection conference, and it is this area that was measured by officers of the Commissioner that is probably the correct area of the AEP. The other venues range from 235m2 to the largest being Candy Club with an area 723m2.
  3. [41]
    Notwithstanding the debate and possible inaccuracies about the area of the Premises and the areas of the other AEPS in the Valley SNP, it is my view that the various areas of all the AEPs is not important in the determining the relevant issues in these proceedings. A far more important issue is the number of AEPs that will operate in the Valley SNP if the AEP was to be granted.

Character and Amenity

  1. [42]
    Much of the discussion at the hearing was devoted to the issue of “character” and “red light district”. The objectors maintain that the AEP will adversely affect the character of the area and transform the area into a red light district as noted in the example outlined in s 107D(1)(b) of the LA. They maintain that the granting of this AEP will be a “tipping point”.
  2. [43]
    There is no definition of red light district in the LA. Counsel provided a copy of the definition of red light district from the Oxford Dictionary (Exhibit 2) to the Tribunal. The simple definition is “a district where prostitution and other sexual activities are concentrated”. It is my view that a prerequisite for a red light district is the presence of legalised prostitution. The nearest licenced brothels are some 2 to 3 kilometres from the Valley SNP.
  3. [44]
    BOA rely on UE’s report (pages 169 to 195 of BoRD) to support their objection. Except for a paragraph on page 2 of the report, I am not appraised of UE’s formal qualifications and expertise on planning laws and this type of industry. Apart from the issue of UE’s expertise, I give this report very little weight because:
    1. (a)
      The report states on page 2 that “this proposed AEP venue, together with the proposed AEP at 247 Brunswick Street will be the “tipping point” for defining a cluster of adult entertainment and redlight district”. There is also a reference to “the tipping point” on page 9 of the report. The analysis in the report does not support this contention; and
    2. (b)
      On page 14 of the report there is a reference to “the cascading downward spiral of vacancies and strip clubs becomes entrenched”. This conclusion relates to the above contention and the conflict between the concentration of adult entertainment venues and the gentrification of the area. It is my view that there is not sufficient analytical evidence to support this conclusion that an additional AEP in this area or locality will substantially affect the character of the locality, will have an adverse impact on the amenity of the community or cause undue annoyance or inconvenience to persons undertaking the activities referred to in s 119(4)(a) of the LA; and
    3. (c)
      UE defines “red light district” on page 10 of the report. This definition includes “licenced brothels”. There can be no licenced brothels in the Valley SNP and as noted on page 15 of UE’s report, licensed brothels must be over 200 metres from residential buildings. That is not possible in the current locality where there is a concentration of residential buildings in the SNP or close to the AEP; and
    4. (d)
      On page 16 of the report UE makes reference to the Bad Girls Maroochydore matter where McMurdo states “The Tribunal determined that it was satisfied the character of the locality would be substantially affected by the grant of the appellant’s application; a locality could be substantially affected by just one premises with an AEP”. This comment has not been used in the proper context. In the decision, McMurdo J was summarising what the Tribunal determined. Whilst the Court of Appeal upheld the Tribunal’s decision, the Bad Girls Maroochydore matter related to an application in Maroochydore on the Sunshine Coast where there were no AEPs, and the AEP was to be located in a “family friendly” locality; and
    5. (e)
      The UE report makes no mention of and there is no analysis of the number of objections in the Bad Girls Maroochydore matter (over 500) compared with the number of objections in these proceedings (15); and
    6. (f)
      A more comparable matter to analyse is the matter of Giribon & Anor v Commissioner for Liquor and Gaming Regulation & Anor [2018] QCAT 169 where the Tribunal reviewed a decision to grant an AEP in the Valley SNP in 2018 where there were 8 public objections and a petition with 25 signatures. The issues that are relevant to these proceedings were discussed in this matter; and
    7. (g)
      There is a reference to the schools on the top of 4 of the report. Ms Crews also makes a reference to the new high school in her objection. It is my view that the schools are some distance from the Valley SNP and an additional AEP will have little or no impact on people and students travelling to and from the schools; and
    8. (h)
      On page 9 of the report there is a statement that the establishment of the Premises and the renovation of the building will remove the opportunity to establish mixed use businesses that were once in the “Chopstix Arcade”. Whilst this may be case, there is no information or analysis on how long the building has been vacant/derelict or what is the likelihood of the building being renovated into a multi-use arcade. It is my view that the renovation of a derelict building (i.e. the existing derelict “Chopstix Arcade”) must have a positive effect on the locality. There is no reference or analysis in the report regarding the possible benefit of the renovation of a derelict building; and
    9. (i)
      The report comments on other red light districts in other cities in Australia and overseas. The report makes reference to trends and the impact on nearby house prices. The report also refers to the adult entertainment venues in these areas being spread out. However, the analysis is very general in nature, is not comparable to the Valley SNP and does not support the conclusions. Further I note that the report refers to these areas as “red light areas”. I refer to my previous comments regarding the definition of a “red light area”; and
    10. (j)
      In the “Implications” section on page 21 of the UE report there is a reference to a the “establishment of a red light district within Fortitude Valley” and “a poor public perception of amenity, high levels of vacancy and decaying urban form.” This is a very general conclusion and comment. I am of the view that the analysis of UE and the evidence in the report does not support the conclusion that one additional AEP in the Valley SNP will establish a red light district or change perceptions; and
    11. (k)
      The UE report does not make comment or analyse the effect that some of the conditions of the AEP may have on the immediate area outside the AEP. For example, no graphic advertising, sufficient lighting, no spruiking, no queuing outside the AEP, use of controllers and people passing the AEP cannot see the activities in the AEP; and
    12. (l)
      In the conclusions on page 22 of the report there is a reference to “higher incidences of crime and public disorder”. Again, I note that this is a general comment relating to red light districts and other adult entertainment precincts.  There is no mention of the initiatives of the Valley SNP or the use of crowd controllers that will be used outside the Premises. Further, I note the comment in the reports to the Commissioner on page 465 of the BoRD, “AEP venues are generally associated with lower levels of alcohol violence, crime and drugs mainly due to higher requirements for security and controllers are to supervise adult entertainment, which tends to subdue patron activity”.

Findings

  1. [45]
    For Grosvenor to be granted the AEP, I must be satisfied that Grosvenor has complied with the relevant legislative requirements set out in Part 5 of the LA.
  2. [46]
    In making this assessment and reach this level of satisfaction I have had regard to the matters outlined in s 121 of the LA. Also, I have used the relevant material submitted to the Tribunal and my assessment of the atmosphere and my perception of the locality and the community where the AEP will be located.
  3. [47]
    I note the conditions imposed on the grant of the AEP such as the use of controllers, no graphic advertising, no person passing the AEP is able to see inside the main area of the AEP, measures to eliminate queueing outside the AEP, no spruiking and sufficient lighting.
  4. [48]
    The initiatives taken regarding the establishment of the Valley SNP and the use of controllers outside the proposed AEP will tend to have the effect of lowering the incidence of violence and bad behaviour caused by excessive consumption of alcohol or drugs.
  5. [49]
    The AEP will be located in a precinct which contains other AEPs, nightclubs, restaurants and hotel/bars.
  6. [50]
    The granting of the AEP will not be the tipping point to cause the locality to descend into a red light district or to form a cluster of adult entertainment venues. The granting of the AEP will not be the tipping point to cause people to believe that the locality will descend into a cluster of AEPs. There are many other late night entertainment venues in the Valley SNP to allow the grant of the AEP without impact on the amenity of the community or to affect the character of the locality.
  7. [51]
    Given the substantial number of people who reside in, do business in, use or travel through the Valley SNP, there are relatively few objections to the grant of the AEP.
  8. [52]
    The Queensland Police Service has been consulted in accordance with s 117 of the LA Act and do not object to the granting of the AEP. See pages 64 to 73 of the BoRD.
  9. [53]
    I am satisfied that:
    1. (a)
      The granting the AEP to Grosvenor together with other premises permitted to provide adult entertainment in the locality surrounding the AEP will not substantially affect the character of the locality as outlined in s 107D of the LA; and
    2. (b)
      The granting of the AEP to Grosvenor will not cause the circumstances set out in ss 119(4)(a)(b)(c) and (d) to happen. It follows that the amenity of community around the AEP will not be impacted by the grant of the AEP; and
    3. (c)
      Grosvenor has complied with the requirements of s 105B of the LA Act; and
    4. (d)
      The AEP will be located at a sufficient distance from the railway station, established schools and a proposed school so that the AEP does not cause undue annoyance, disturbance or inconvenience to students and persons travelling to and from  the railway station and these schools; and
    5. (e)
      The AEP will have no impact on retirement homes or other businesses situated at Newstead or Howard Smith Wharf; and
    6. (f)
      Grosvenor is renovating a derelict and vacant building which will have a positive impact on the character of the locality and amenity of the community; and
    7. (g)
      There is no analytical evidence, apart from the general comments in the UE report, to indicate that the granting of the AEP will have any effect on the value of real estate in or close to the Valley SNP; and
    8. (h)
      The granting of the AEP will not be the tipping point to cause the locality or the community to descend into a red light area or to form a cluster of adult entertainment venues; and
    9. (i)
      Grosvenor is suitable to be granted an AEP and satisfies the requirements set out in ss 107D,107E and the other relevant provisions of the LA; and
    10. (j)
      Grosvenor has complied with all the other legislative requirements contained in the LA and its regulations regarding the granting of the AEP.
  10. [54]
    Accordingly, Grosvenor should be granted the AEP and I confirm the Decision.
Close

Editorial Notes

  • Published Case Name:

    BOA Capital Pty Ltd v Commissioner for Liquor and Gaming and Anor

  • Shortened Case Name:

    BOA Capital Pty Ltd v Commissioner for Liquor and Gaming

  • MNC:

    [2023] QCAT 53

  • Court:

    QCAT

  • Judge(s):

    Member Poteri

  • Date:

    25 Jan 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Bad Girls Maroochy Pty Ltd v Chief Executive, Department of Tourism, Racing & Fair Trading[2004] 2 Qd R 352; [2004] QCA 45
2 citations
Jump To
Cite 1 - [2004] QCA 45
Cite 2 - [2004] QCA 45
Broad v Brisbane City Council[1986] 2 Qd R 317; [1986] QSCFC 27
1 citation
Jump To
Cite 1 - [1986] 2 Qd R 317
Giribon v Commissioner for Liquor and Gaming Regulation [2018] QCAT 169
2 citations
Jump To
Cite 1 - [2018] QCAT 169
Cite 2 - [2018] QCAT 169
Hermitage Trading Pty Ltd v Commissioner for Liquor and Gaming [2019] QCAT 407
2 citations
Jump To
Cite 1 - [2019] QCAT 407
Cite 2 - [2019] QCAT 407

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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