ALH Group Pty Ltd v Dicey's Toowong Pty Ltd & Anor [2002] QSC 396

ADMINISTRATIVE LAW - JUDICIAL REVIEW LEGISLATION - COMMONWEALTH, QUEENSLAND AND AUSTRALIAN CAPITAL TERRITORY - GROUNDS FOR REVIEW OF DECISION - ERROR OF LAW - where Tribunal excluded statements from residents affected by the decision to grant a liquor licence - where the residents were not the objector, and where the impact upon the residents may not be the same impact upon the objector - where the inclusion of those statements would not impact the decision - where a member of the Tribunal visited the area in question without notifying the parties - whether it was a view or merely a visit to a public place

ADMINISTRATIVE LAW - APPEALS FROM ADMINISTRATIVE AUTHORITIES - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS - APPEALS FROM PARTICULAR AUTHORITIES - where Tribunal, in assessing a liquor licensing application, excluded statements of residents affected by the decision - whether the Tribunal was obliged to take statements from non-objectors into consideration where the decision impacted the objector and the non-objectors in different ways

ADMINISTRATIVE LAW - PARTICULAR TRIBUNALS OR BODIES - LIQUOR LICENSING TRIBUNALS - whether the Tribunal acted in accordance with the requirements of the Liquor Act (Qld) 1992

LIQUOR LAW - LICENSING - APPLICATION FOR NEW LICENCE - HEARING OF APPLICATION - WHAT OBJECTIONS OR GROUND MAY BE TAKEN AND BY WHOM - where persons affected by the decision made statements to the Tribunal - where the statements were by non-objectors, where the objector was impacted in different ways to the non-objectors - whether the exclusion of those statements amounted to an appellable error of law - where the inclusion of those statements would have no impact on the decision made

LIQUOR LAW - LICENSING - LICENSING TRIBUNALS GENERALLY - REVIEWS, APPEALS AND CASES STATED - QUEENSLAND - whether the Tribunal acted in accordance with the requirements of the Liquor Act (Qld) 1992

Administrative Decisions (Judicial Review) Act 1977

Liquor Act 1992

Broad v The Brisbane City Council and the Baptist Union of Queensland [1986] 2 Qd R 317

Builders' Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616

Goold v Evans & Co. [1951] 2 TLR 1189

H A Backrach Pty Ltd v Caboolture Shire Council [1992] QCA 384; (1992) 80 LGERA 230

Harpur v Ariadne Australia Limited [1984] 2 Qd R 523

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Murray v Council of Municipality of Rockyview No. 44 (1980) 12 MPLR 161

Nordale Management Pty Ltd v The Liquor Appeals Tribunal, unreported decision of Fryberg J of 20 July 1995 (No. 77/1995)

R v O'Donnell, ex parte Builders' Registration Board of Queensland [1983] 1 Qd R 417

R v Syme, ex parte Page [1970] WAR 153

Re McHenry [1987] 4 SR (WA) 31

Salsbury v Woodland [1969] EWCA Civ 1; [1970] 1 QB 324

Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473

Mr J Gallagher QC with him Mr R Traves for the appellant

Mr N M Cooke QC with him Mr A Herbert for the first respondent

[1] The first respondent, Dicey's Toowong Pty Ltd, ("Dicey's") applied for and was granted a general licence on 21 August 2001 by the second respondent, the Chief Executive, Liquor Licencing Division, Department of Tourism, Racing and Fair Trading ("the Chief Executive") under the Liquor Act 1992 ("the Act") to trade as a tavern from premises at 3 Sherwood Road, Toowong. The appellant, ALH Group Pty Ltd, ("ALH") is the proprietor of the Royal Exchange Hotel ("the RE") located across the road. It was an objector to the grant of the general licence. It appealed unsuccessfully to the Liquor Appeals Tribunal ("the Tribunal") and now appeals to this court pursuant to s 24 of the Act. Appeals to this court can only be made on an error of law.

[2] ALH complains that the Tribunal impermissibly declined to admit the evidence of 13 witnesses who were residents in the locality and in so doing deprived ALH of a fair hearing. ALH contends that the Tribunal was led into this error by an incorrect approach to s 119 of the Act. A further discrete ground of appeal relates to a single member of the Tribunal having an unplanned view of the locality.

Legislative scheme of the Act

[3] The provisions of the Act applicable to this appeal are to be found in Reprint No. 5F. There have been subsequent amendments to some of the sections with which this appeal is concerned.

[4] An application for a liquor licence is made to the Chief Executive, s 105(a). The application must be advertised, s 118. On a relevant application, of which this is one, the Chief Executive must inform the local government authority for the locality and the Assistant Commissioner of Police who may comment or object to the grant of the application. By s 119 a member of the public, defined in ss (4), may object to the grant of the application in writing filed with the Chief Executive within the prescribed time on specified grounds, namely,

"(3) (a) if the application were granted - undue offence, annoyance, disturbance or inconvenience to persons who reside or work or to 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 is likely to happen; or

(b) if the application were granted - the amenity, quiet or good order of the locality concerned would be lessened in some way."

A member of the public is defined in s 119(4) as any adult individual or body of persons that in the Chief Executive's opinion

"(a) has a proper interest in the locality concerned; and

(b) is likely to be affected by the grant of the application."

[5] The Chief Executive is required to hold a conference of all interested persons if there is an objection, s 121. The Chief Executive must then make a decision, in the absence of agreement at the conference, whether to grant an application, having regard to the matters set out in s 121(5). Relevantly, they are public need pursuant to s 116; the objections made to the grant of the application; comments from the relevant local government and Assistant Commissioner of Police; and the impact on the amenity of the community concerned.

[6] The applicant is required to satisfy the Chief Executive that the licence is "necessary to provide for the reasonable requirements of the public for liquor and related services in the locality", s 116(2). To that end the applicant must give information to the Chief Executive about:

* The number and condition of licensed premises already in the locality;

* The extent and quality of the services provided in existing premises;

* Whether the proposed services could be adequately provided by existing premises;

* Any other relevant information requested by the Chief Executive, s 116(3).

In deciding the reasonable requirements of the public for liquor and related services in the locality, the Chief Executive must take into account information about the matters mentioned in ss (3) and "must have regard to":

"(a) The population and demographic trends in the locality; and

(b) The number and kinds of persons residing in, resorting to or passing through the locality, or likely in the foreseeable future to do so, and their respective requirements or expectations; and

(c) The extent to which any requirement or expectation -

(i) varies during different periods or at different times; and

(ii) is lawfully met by other premises, licensed or unlicensed; and

(d) The likely health and social impact that granting the application would have on the population of the locality".

[7] The Liquor Appeals Tribunal has jurisdiction to hear and determine appeals against a decision of the Chief Executive to grant a licence and in exercising its jurisdiction it has the powers, discretions, duties and limitations imposed by the Act on the Chief Executive, s 21. In the exercise of its jurisdiction the Tribunal must observe natural justice; proceed expeditiously with as little formality and technicality as is consistent with a fair and proper consideration of the matter before it; is not bound by rules or practice as to evidence and may inform itself on any matter and may regulate its procedures as it considers appropriate, s 25.

[8] An appeal against the Chief Executive's decision may be made only by a person who made an application, submission or objection in the proceedings in which the decision was made and is aggrieved by that decision, s30. An appeal to the Tribunal "is by rehearing of the matter unaffected by the decision appealed against", s 34(1). The appellant, Chief Executive and each person who made an application, submission or objection in the proceeding relevant to the appeal is entitled to be heard on the appeal personally or, with leave, by solicitor or counsel, ss 33(2), 34(3) and (4).

[9] The Tribunal found the following about the decision made by the Chief Executive which is not disputed

"1. On 2 April 2001, Mulhern Constructions Pty Ltd (the "applicant") lodged an application for a general licence in respect of premises situated at 3 Sherwood Road, Toowong, to be known as "Dicey Reilly's". The applicant sought trading hours from 8.00 a.m. - 2.00 a.m. Monday to Sunday.

2. The application was advertised pursuant to s.118(1)(a) of the Liquor Act 1992 (the "Act"). Three individual objections, each including public need issues, were received. A conference of concerned persons was held, but no resolution of the objectors' concerns was obtained.

3. The Assistant Commissioner of Police, Metropolitan North Region, and the Brisbane City Council were asked to comment on the application pursuant to s.117 of the Act. Neither the Assistant Commissioner nor the Council objected to the application.

4. On 21 August 2001, the Chief Executive granted the application with trading hours from 10.00 a.m. - 12 midnight Monday to Sunday, subject to lodgement of outstanding documentation and to completion of building work within 12 months. The Chief executive granted a 6 months trial period of extended trading hours from 12 midnight - 2.00 a.m. Monday to Sunday. The Chief Executive refused the application for extended trading hours from 8.00 a.m. - 10.00 a.m. Monday to Sunday.

5. In his reasons for decision provided to the Tribunal, the Executive Director of the Liquor Licensing Division stated:

* The application met all Division requirements in terms of the premises and information required to be supplied.

* The applicant was found to be a fit and proper person in terms of Section 107 of the Liquor Act.

* The Assistant Commissioner of Police and Chief Executive Officer, Brisbane City Council did not provide any objections to the application.

* The Department was satisfied that the amenity (in terms of Section 119 of the Act) would not be unduly affected.

* The Chief Executive was satisfied that the approval sought is necessary to provide for the reasonable requirements of the public for liquor and related services in the locality to which the application relates."

[10] The notice of appeal to the Tribunal dated 10 September 2001 was in the following terms

"An adverse impact on the amenity of residents in the locality will result as no car parking is provided and patrons forced to park in the surrounding residential streets - thereby resulting in late night/early morning disturbance - undue offence, annoyance and disturbance to persons living, working and doing business in the locality concerned".

[11] On 9 November 2001 the Tribunal directed ALH to give particulars of the grounds of appeal and any proposed amendments to the notice of appeal by 13 November 2001 and copies of any material upon which it proposed to rely and other consequential directions. The particulars of the grounds of appeal were significantly enlarged from the notice of appeal but no recipient raised any objection. They were:

"1. Approval of the application will cause undue offence, annoyance, disturbance or inconvenience to persons who do business in the locality concerned, as:

(a) the proposal does not make adequate or any provision for car parking for those patrons who will travel to the tavern by way of motor vehicle, as:

(i) the proposal does not incorporate any on-site customer parking;

(ii) no on-street car parking is available adjacent to the proposed tavern for the use of tavern patrons; and

(iii) no authorised off-street car parking is available for the use of tavern patrons in the vicinity of the proposed tavern;

(b) it is likely that some tavern patrons, although not authorised to do so, will park in the Toowong Village Shopping Centre car park - reducing parking available to tenants, staff and visitors to Toowong Village Shopping Centre;

(c) it is likely that some tavern patrons, although not authorised to do so, will park in the car park at the rear of the Royal Exchange Hotel ("the Hotel") - reducing parking available to Hotel patrons;

(d) it is likely that some tavern patrons, although not authorised to do so, will park in the private car parks of other businesses in the vicinity of the proposed tavern - reducing parking available to tenants, staff and visitors to those businesses;

(e) owners of properties with private car parking areas in the vicinity of the proposed tavern are likely to be exposed to increased liability as a result of the unauthorised use of those car parking areas by patrons of the proposed tavern;

(f) businesses in the Toowong Village Shopping Centre will be adversely impacted by reason of patrons of the proposed tavern using carparks in the Toowong Shopping Centre which would otherwise be available to the customers of those businesses;

(g) the business of the Sizzler Restaurant in the Toowong Village Shopping Centre will be particularly adversely impacted by reason of:

(i) patrons of the proposed tavern using that part of the carpark in the Toowong Village Shopping Centre most commonly used by the patrons of Sizzler; and

(i) the Appellant will suffer a loss of parking available to Hotel patrons as:

A. patrons of the proposed tavern are likely to use the car park at the rear of the Hotel;

B. unauthorised use of the Hotel's parking by patrons of the proposed tavern will reduce the number of carparks available for Hotel patrons;

(ii) the Appellant will suffer safety and liability consequences of the use of the Hotel's car park by patrons of the proposed tavern;

(iii) the Appellant will suffer security, safety and liability consequences associated with some of the Hotel's patrons migrating to the proposed tavern after the Hotel has closed;

(iv) altercations involving patrons of the proposed tavern congregating on High Street outside the Hotel in the vicinity of the bus stop and taxi rank will be likely to have a detrimental impact on the reputation of the Hotel;

(v) the Appellant is likely to be adversely affected by an increase in the likelihood of vandalism and crime in the vicinity of the Hotel; and

(vi) noise and nuisance associated with the use of the proposed tavern is likely to cause an increase in the number of complaints from residents about the operation of licensed premises in the area generally, impacting on the reputation of the Hotel;

(i) the intersection outside the Hotel is very congested and there will be safety issues associated with the increase in the number of pedestrians in the vicinity of that intersection;

(j) noise associated with the proposed tavern will cause nuisance; and

(k) businesses are likely to be adversely affected by an increase in vandalism and other crime.

2. Approval of the application will cause undue offence, annoyance, disturbance or inconvenience to persons who work in the locality concerned, as:

(a) the proposal does not make adequate or any provision for car parking for those patrons who will travel to the tavern by way of motor vehicle, as:

(i) the proposal does not incorporate any on-site customer parking;

(ii) no on-street car parking is available adjacent to the proposed tavern for the use of tavern patrons; and

(iii) no authorised off-street car parking is available for the use of tavern patrons in the vicinity of the proposed tavern;

(b) it is likely that some tavern patrons, although not authorised to do so, will park in the Toowong Village Shopping Centre car park - reducing parking available to tenants, staff and visitors to Toowong Village Shopping Centre.

(c) it is likely that some tavern patrons, although not authorised to do so, will park in the private car parks of other businesses in the vicinity of the proposed tavern - reducing parking available to tenants, staff and visitors to those businesses; and

(d) conflicts between the patrons of the proposed tavern and visitors to Toowong Village Shopping Centre and the other businesses in the vicinity of the proposed tavern are likely to occur.

3. Approval of the application will cause undue offence, annoyance, disturbance or inconvenience to persons who reside in the locality concerned, as:

(a) the proposal does not make adequate or any provision for car parking for those patrons who will travel to the tavern by way of motor vehicle, as:

(i) the proposal does not incorporate any on-site customer parking;

(ii) no on-street car parking is available adjacent to the proposed tavern for the use of tavern patrons; and

(iii) no authorised off-street car parking is available for the use of tavern patrons in the vicinity of the proposed tavern;

(b) the loss of car parking and noise and disturbance associated with the proposed tavern will cause a loss of utility of Toowong Village Shopping Centre;

(c) it is likely that some tavern patrons will park in nearby residential streets;

(d) patrons from the proposed tavern congregating on High Street outside the Hotel in the vicinity of the bus stop will cause an increase in the number of altercations;

(e) the intersection outside the Hotel is very congested and it is likely that there will be safety issues concerning the increase in the number of pedestrians in the vicinity of that intersection;

(i) the dispersal of patrons of the proposed tavern; and

(ii) the use by patrons of the proposed tavern of the large outdoor area proposed.

(g) it is likely that there will be an increase in vandalism and other crime.

4. Approval of the application would lessen the amenity, quiet and good order of the locality concerned as:

(a) patrons from the proposed tavern congregating on High Street outside the Hotel in the vicinity of the bus stop is likely to cause an increase in the number of altercations;

(b) it is likely that there will be an increase in vandalism and crime in the vicinity of the proposed tavern;

(c) conflicts between the patrons of the proposed tavern and visitors to Toowong Village are likely to occur;

(d) safety issues will arise with regard to the use of the underpass near the near the (sic) railway as patrons of the proposed tavern and the Hotel move between the premises;

(i) the dispersal of patrons of the proposed tavern; and

(ii) the use by patrons of the proposed tavern of the large outdoor area proposed,

(f) it is likely that some tavern patrons will park in nearby residential streets;

(g) the use of residential streets late at night by patrons of the proposed tavern will cause a nuisance due to loutish or boisterous behaviour, yelling, the starting of cars and the slamming of car doors;

(h) an increase in noise associated with patrons of the proposed tavern using the laneway between the footbridge and Archer Street will cause a nuisance.

5. The Liquor Appeals Tribunal has no jurisdiction to approve the application as the application is not in respect of premises for which a general licence is appropriate."

[12] ALH has a wine/bottle shop in the Toowong Village Shopping Centre.

[13] The appellant served copies of its witness' statements including from 13 residents in nearby streets. Only Mrs Maryann Schubert amongst those residents had lodged a valid objection. She was not an appellant but was entitled to be heard.

[14] Prior to hearing the appeal Dicey's sought an order that ALH was not a competent objector and had no right to appeal against the decision of the Chief Executive. Objections had been lodged on behalf of ALH on both public need and amenity grounds, but the contention was that it was not "a member of the public" as defined in s 119(4). The Tribunal held that the appellant had standing and Dicey's does not appeal from that decision.

[15] On commencement of the appeal Dicey's objected to the tender of the residents' statements by ALH as part of its case on the grounds that the residents could have but did not lodge objections in response to public advertising and were therefore not entitled to appeal or to be heard on the appeal and that ALH could not adduce evidence of a lessened amenity in respect of which it would suffer no detriment. The Chief Executive supported the objection. The Tribunal declined to receive the statements of residents save for that of Mrs Maryann Schubert since she had been an objector and certain paragraphs in the statements of two other residents which concerned impacts on the RE. Mrs Schubert then instructed ALH's solicitor to appear on her behalf and sought to have the excluded statements tended. The Tribunal declined to permit the statements to be admitted on the grounds that Mrs Schubert had not participated in the directions hearing on 9 November 2001; had not complied with the direction about the provision of witness statements; her own statement about the residential amenity was extensive; no party had sought to challenge her evidence about the character of the area so that the statements had little probative value; and the statements would constitute de facto objections and be contrary to the orderly scheme of the Act. It is the rulings about the admissibility of the residents' statements which are at the heart of the appeal.

[16] The other aspect of the Tribunal's decision which is challenged relates to a view. In the course of final submissions a Tribunal member mentioned that she had visited the over-road walkway linking the residential streets where the makers of the excluded statements and Mrs Schubert lived with the site of the proposed tavern. The Tribunal member commented that, by inference, she did not find it an attractive place at night. ALH contends that the Tribunal erred in conducting an unaccompanied view of the locality without the other members of the Tribunal and without giving ALH an opportunity to answer any conclusions formed on the inspection.

[17] It is trite to observe that the starting point in considering ALH's contention that the Tribunal impermissibly excluded the residents' submissions is to examine the legislative provisions. An appeal to the Tribunal is by "a re-hearing of the matter unaffected by the decision appealed against," s 34(1). The "matter" is the application for a licence. There are differing meanings attached to the word

"re-hearing" according to the legislative context but it is unnecessary to canvas them here. It is sufficient to note Mason J's observations in Builders' Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 621:

"Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of a re-hearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect."

See also R v Syme, ex parte Page [1970] WAR 153; R v O'Donnell, ex parte Builders' Registration Board of Queensland [1983] 1 Qd R 417 at 420 per Campbell CJ; and Harpur v Ariadne Australia Limited [1984] 2 Qd R 532 at 528 per Connolly J.

[18] The provisions relating to the Tribunal to which reference has earlier been made clearly anticipate a witness hearing before the Tribunal and the parties do not contend otherwise. Amendments to the Act introduced subsequently to this application stipulate that the re-hearing is to be on the evidence that was before the Chief Executive, s 34(1), although leave may be granted to adduce fresh evidence on much the same grounds that exist under the general law in respect to appeals. This tends to confirm the conclusion that so far as this matter is concerned the hearing before the Tribunal was a hearing de novo.

[19] In carrying out its functions the Tribunal is not simply deciding between competing private interests although the process is essentially adversarial in practice. The Tribunal must be satisfied, as the Chief Executive was required to be satisfied, that the provision of the licence under consideration "is necessary to provide for the reasonable requirements of the public ...", s 116(2), and in doing so must have regard to the matters set out in s 116(3) and (4) (above) which include the social impact on the population of the locality.

[20] In order to have standing to object to the grant of a licence a person must be "a member of the public" as defined in s 119(4), that is,

(a) has a proper interest in the locality concerned; and

(b ) is likely to be affected by the grant of the licence.

The grounds on which a person who satisfies those criteria as to standing may object are found in s 119(3) - if the application were granted

(a) undue offence, annoyance, disturbance or inconvenience may result to persons who reside, or work or do business in the locality or to persons in or travelling to or from a place of public worship, hospital or school; or

(b) the amenity, quiet or good order of the locality would in some way be lessened.

[21] In its ruling excluding the residents' statements the Tribunal said at paragraph 23 of the decision:

"Section 119 of the Act establishes a scheme whereby a person likely to be affected by the granting of an application, and having a proper interest in the locality, may object to the application ... While the Tribunal recognises that in appeal to the Tribunal, an objector may raise jurisdictional issues, that is a separate matter to a person who could have lodged an objection and who failed to do so then seeking to raise their concerns with the Tribunal. It is antithetical to the scheme of the Act for a person entitled to lodge an objection under s 119, who has not done so, to subsequently seek to agitate an amenity issue in an appeal before the Tribunal by appearing as a witness in the case of another party."

[22] I can find no legislative basis for excluding the residents' statements on the ground that they could have been objectors and, for whatever reason, chose not to participate in the Chief Executive's determination. As s 34 then stood there was no limitation on the witnesses who could be called by a party before the Tribunal save as to relevance and the Tribunal regulating its own process. Town planners, acoustic and traffic engineers as well as officers of adjacent businesses that offered car parking facilities in the locality and the local government councillor gave evidence going not only to broad traffic and car parking issues which were held by the Tribunal to be legitimately a concern for ALH but also to the amenity of the locality as mentioned in s 119(3)(b) without objection, and, in my view, correctly so.

[23] The solicitor for ALH referred the Tribunal to Re McHenry [1987] 4 SR (WA) 31 where the Liquor Licensing Court held at 35 that evidence by local residents as to disturbance need not be confined to evidence by the objectors. The Tribunal declined to be persuaded by Re McHenry. The Tribunal took an erroneous view of the Act when it excluded the evidence of the residents on the basis that they could have been objectors but were not.

[24] The Tribunal excluded the residents' statements on the further ground that an appellant might not agitate issues beyond its own immediate impacts. At [24] it said:

"...The Tribunal takes the view s 119 requires that the impacts affect the objector concerned. In our view, to be a `member of the public', an objector must be likely to be affected by the grant of the application in one of the ways identified in s 119(3)."

[25] Once a person qualifies as one who may object there is no apparent fetter in the grounds of objection which may be made provided they are confined to those set out in s 119(3)(a) and/or (b). There was no dispute about ALH having "a proper interest in the locality" in the sense of a real or genuine interest and that it was likely to be affected by the grant of the application. I cannot read "proper" to mean limited to likely impacts upon it deriving from s 119(3)(a) or (b). In a broad sense, as ground of appeal 1(h)(vi) articulates, if the licence is granted there may be an increase in the number of people frequenting the nearby residential streets late at night creating a noise and nuisance leading to an increase in complaints from the residents who will not discriminate between patrons from the tavern and patrons from the RE. To this extent the owners of the RE would be affected. This demonstrates that the whole question of amenity is complex and subtle with wide-ranging impacts as recognised in the cases, for example, Broad v The Brisbane City Council and the Baptist Union of Queensland [1986] 2 Qd R 317. What has happened here is that the Tribunal, to use the words of Barwick CJ in Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473 at 481-2, has confused the identity and interest of ALH as an objector with the nature and extent of the objection.

[26] In Nordale Management Pty Ltd v The Liquor Appeals Tribunal, unreported decision of Fryberg J of 20 July 1995 (No. 77 of 1995), his Honour observed of s 119(3)(a) at p 7 of his reasons that "an objector may make his objection on grounds that others ... may suffer the detriment described in the section". The Tribunal sought to distinguish Nordale because his Honour was concerned to ascertain if a corporation could be "a member of the public" within the meaning of s 119(4). That does not lessen the force of his Honour's observations with which I agree.

[27] The Tribunal rejected the evidence of the residents on the further ground that it would be contrary to its obligation pursuant to s 25(a) of the Act to observe natural justice for an applicant for a licence and the Chief Executive to be required to respond for the first time to a person alleging a detrimental impact under s 119 at the start of an appeal to the Tribunal. Directions were given about the provision of witness statements on 9 November 2001 which were provided in sufficient time to respond, but this is a discretionary matter for the Tribunal.

[28] The Tribunal declined to receive the residents' statements in Mrs Schubert's appeal because she had not participated in the directions hearing or complied with the directions. In a case where a lawful participant in an appeal seeks to put in late statements either because the person had not participated in a directions process or for some other reason, it will be for the Tribunal to assess, in the proper control of its own processes, whether to admit the late material. In making that decision the Tribunal would be governed particularly by issues of prejudice to other parties. None was demonstrated here. Those statements were provided by ALH in accordance with the timetable set by the Tribunal. That they were now sought to be used by Mrs Schubert who was not an appellant but entitled to be heard is to prefer form over substance.

[29] The question for the Tribunal as to the admissibility of the residents' statements was one of construction of the Act and in particular of s 119 insofar as ALH sought to tender them and not one of discretion. I have concluded that the Tribunal gave the legislation a restrictive meaning which it does not bear and this constitutes an error of law. The question is the consequence of that error. The Court of Appeal in HA Backrach Pty Ltd v Caboolture Shire Council [1992] QCA 384; (1992) 80 LGERA 230 at 237-8 concluded that if the impugned decision might have been different if the error had not occurred the decision appealed from must be set aside. The Court held that the proper test was that articulated by Mason J with whom Gibbs CJ and Dawson J agreed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40 discussing the consequence in a review of a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth), of a failure to take into account relevant considerations:

"Not every consideration that a decision maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be

re-exercised according to law. A factor might be so insignificant that the failure to take it into account would not have materially have affected the decision."

Although not entirely apt for the circumstances of this appeal those remarks point to the appropriate approach.

[30] The residents whose evidence was excluded live in Archer Street, Glen Road and Benson Street, Toowong. Mrs Schubert lives in Archer Street. Benson Street becomes Coronation Drive inbound to the city. There is no parking in Benson Street. Glen Road turns into Archer Street. Archer Street and Glen Road lie between Benson Street/Coronation Drive and the Brisbane River. A pedestrian overpass from Toowong Village, opposite the RE, over Benson Street gives access via a laneway to Archer Street. It is this ready access to the business area and facilities on the other side of Benson Street which presently causes patrons of the RE to look for car parking there and as a thoroughfare to destinations located east beyond Archer Street and Glen Road rather than crossing at the traffic lights at Benson Street. The residents whose statements were excluded expressed concerns about increased noise and disturbance in and around their streets beyond the RE's closing time of midnight if the licence were granted, particularly that of patrons returning to their cars late at night as well as security concerns and extra demand for parking. Similar concerns were expressed by Mrs Schubert which were not said to be unfounded by Dicey's. Her evidence on these matters was not contradicted.

[31] Mr J Gallagher QC for ALH submitted that the reception and consideration of the residents' statements could have affected the decision of the Tribunal because they differed in degree of concern from that of Mrs Schubert and therefore the matter should be remitted to a differently constituted tribunal. Mr N M Cooke QC for Dicey's submitted that the Tribunal had a significant body of other evidence about the effect of the grant of the licence on the amenity of the location and appropriately considered the amenity of the residents' area.

[32] The effect on parking in the locality was a primary focus of the hearing. The RE provides approximately 29 car parking spaces itself for patrons whose numbers can be up to 700 and demand for parking behind the RE and other establishments along High Street, the evidence revealed, was very high. The dedicated carparks associated with Woolworths, Toowong Village and the Commuter Carpark gave rise to extensive evidence and this included evidence about the pressure around residential streets particularly in Archer Street and Glen Road which were already significantly challenged from shoppers and workers at the ABC in Archer Street in the day time and in the evening due to late night shopping and patronage of the RE.

[33] The Tribunal considered parking impact on the residents' precinct by reference to the evidence of Councillor Magub, the experts and Mrs Schubert. At [58] the Tribunal said:

"The Tribunal does not accept Mr Beard's [traffic engineer] conclusion that increased competition for parking in the area would be likely to lead to parking in Archer Street. In his assessment, Mr Beard did not entertain the likelihood of users of the High Street/Sherwood Road precinct parking westward along Sherwood Road if parking spaces in the precinct were not easily obtained. While Mr Beard was confident that drivers would look further afield if competition for car parking increased, the Tribunal does not accept his assessment that the Commuter Carpark approximately 300 metres along Coronation Drive would be unattractive to parkers. It is well lit and notwithstanding its signage, provides car parking on a 24 hour basis."

"The Tribunal recognises that there is some prospect, given the likely increased competition for car park spaces, that some drivers may look east and park in Archer Street. In the event of precinct patrons parking in Archer Street, it is likely that Mrs Schubert and other residents will hear voices, engine starts and vehicles being driven, at the least."

[34] In the following paragraphs, although the Tribunal referenced its remarks to Mrs Schubert, it is clear that the observations are applicable to the residents of that precinct generally. For example, in paragraph [65] the Tribunal said:

"The question for the Tribunal is, to what extent would such late night noises and activity cause undue offence, annoyance, disturbance or inconvenience to Ms Schubert; or lessen the amenity, quiet or good order of the locality? In the Tribunal's opinion, Archer Street is not likely to offer many car parking spaces to patrons of the precinct. Archer Street has 16 on-street car parks. Some on-street parking is currently taken up at night time by residents' vehicles. The Benson House carpark in Archer Street might easily be sealed off at night by chains across its entrance driveways."

"Archer Street in day time currently brings in many non-residents. It is subject to heavy day time use by pedestrians and cyclists, and on weekends by cyclists and recreational walkers and joggers. According to Ms Schubert, during the week, on-street parking spaces are virtually unavailable during the day. The ABC at the north end of Archer Street and businesses on Benson Street all utilise Archer Street parking spaces. While Ms Schubert states that this is a safe neighbourhood and quiet at night, this must be seen in the context of her experiencing three to four incidents per year giving her cause to be concerned for her personal safety. Ms Schubert stated that although the noise from the RE has quietened in recent months, she said that she was still woken one or two times a month by people leaving late at night and creating a nuisance forcing her to get up to investigate what is going on at the front of her home." [66].

The observations about Archer Street where the majority of the residents whose statements were excluded live would be true for the corner of Benson Street and Glen Road where one of the residents lives backing on to the property of another who lives in Archer Street on the corner of Glen Road.

[35] Of the noise emanating from the entertainment at Dicey's tavern the Tribunal noted the evidence of Mr D Borgeaud, an acoustic engineer and said at [72], [74] and [75]:

"At issue is the question whether use by patrons of the verandahs on the terrace and top level will introduce unacceptable noise levels to Archer Street; and whether noise of patrons departing will create unacceptable noise intrusions to Archer Street.

Based upon the evidence of acoustic engineer Mr Borgeaud, called by the appellant, the Tribunal is persuaded that patron noise alone generated from the outdoor verandah areas is likely to cause annoyance and sleep disturbance in Archer Street in the late evening. In our view, noise of patrons in the precinct during the evening is an expected and not unreasonable activity in and near a precinct such as the Toowong Suburban Centre, although it may cause some disturbance to nearby residents such as Ms Schubert. The Tribunal is concerned that in the early morning, the noise associated with patrons on verandahs and dispersing from the proposed premises, may prove to be unduly intrusive at Ms Schubert's house.

As to the dispersal of patrons at close of trading, no evidence before the Tribunal indicates that the noise made by patrons departing Dicey Reilly's would be different to the noise made by patrons departing the RE, however this could take place up to two hours later at night, at which time the ambient noise levels in Archer Street will have dropped by several decibels. It is to be expected therefore that such noises will have a more intrusive effect at 2.00 a.m. than at 12 midnight. This is one of the matters to be the subject of monitoring by the Division, in connection with the six month trial of 2.00 a.m. trading, in the event the licence is granted."

To combat the noise from the tavern's terrace the Tribunal required Dicey's to prohibit patrons from accessing the outdoor verandahs on the terrace level and the new level from 12.00 midnight.

"The Tribunal considers that in the context of the existing level of intrusion and disturbance in Archer Street and its location in proximity to a major centre, that the likely impacts are not of such magnitude that the amenity, quiet or good order of Archer Street will be significantly lessened; nor that the likely disturbance, annoyance, inconvenience or offence would be undue, given the existing levels of intrusion into the street at night from activities conducted nearby."

It is clear that the Tribunal had regard to the matters referred to in s 116(4)(a)-(d) and in particular to the likely social impact that granting the application would have on the population of the locality including residents. It was unnecessary to make specific reference to the potential use of Sizzlers' car parking spaces by patrons of the tavern, contrary to ALH's submissions. The whole issue of car parking was canvassed at length. Although the Tribunal erred in excluding the evidence of the residents by reading down the meaning of s 119, nonetheless it addressed the concerns contained in their statements. It can confidently be concluded that had it received those statements and had it not confined its approach to the appeal to impacts upon ALH directly the result would have been the same.

[37] In closing submissions to the Tribunal Mr Herbert for Dicey's said:

"Now that's apart from the fact that Mr Ovenden said he went out there and marched the march last night and he walked the walk in the middle of the night and said it is actually quite a daunting trip, even if you know that walkway there, even if you are looking to part [sic] in that area, it is not convenient, it's not a happy place to park and it is quite difficult and late at night quite a dangerous looking journey. It is not, as Mr Bowie said, a case out of the pub, flip, flip, over the road, you're at your car. It is not that all [sic], and again I'd invite Mr Ovenden and suggest that members of this Tribunal go and have a look at that situation at 10 o'clock at night and I'd suggest you take your lamplight and your dog." Exhibit 2, p 496.

According to the transcript one of the members of the Tribunal responded:

"I should say I actually went there a bit later than Mr Ovenden last night, did the walk and didn't think it was something I'd like to do a lot of." Ibid.

The transcript reveals that nothing more was made of the visit. There had been earlier requests to the Tribunal to conduct an inspection to familiarise the members with the area by the solicitor for ALH and by Mr Herbert.

[38] ALH contends that the observation expressed by the Tribunal member was relevant to the issue whether patrons of the tavern would park in Archer Street which was relevant to an issue before the Tribunal. ALH contends that for only one member to inspect constituted an error because it was essential that all members hearing the appeal be present, that the parties or their representatives should have been given the opportunity of then being present and should have been in a position to deal with opinions formed on such an inspection. That was not the approach which ALH's solicitor took when recommending an inspection to the Tribunal. Mr Bowie suggested that the Tribunal might visit the resident's precinct on their own. The observation made by the Tribunal member was consistent with some of the comments that appeared in the residents' statements about their attitude to the walkway to Archer Street at night. It was consistent with other evidence admitted at the hearing. It is clear that it was neither an inspection nor a view as generally understood. Lord Widgery in Salsbury v Woodland [1969] EWCA Civ 1; [1970] 1 QB 324 referred to the judgment of Denning LJ in Goold v Evans & Co. [1951] 2 TLR 1189 at 1191:

"It is a fundamental principle of our law that a judge must act on the evidence before him and not on outside information; and, further, the evidence on which he acts must be given in the presence of both parties, or, at any rate, each party must be given an opportunity of being present. Speaking for myself, I think that a view is part of the evidence, just as much as an exhibit. It is real evidence. The Tribunal sees the real thing instead of having a drawing or photograph of it. But, even if a view is not evidence, the same principles apply. The judge must make his view in the presence of both parties, or, at any rate, each party must be given an opportunity of being present. The only exception is when a judge goes by himself to see some public place, such as the site of a road accident, with neither party present."

His Lordship added that where a judge goes to see some public place:

"... all that is involved is the presence of the judge using his eyes to see in three dimensions and true colour something which had previously been represented to him in plan and photographs. ... Different considerations apply to a "view" in the true meaning of the word, where all that is required is that the judge should go to the place to see what it looks like, he having been already given in evidence the available assistance in the form of photographs and a plan. A view of that kind is constantly held by a judge by himself without reference to the parties at all. ..." at p 343-4.

That is precisely the case here. It may have been the case that the other Tribunal members were quite familiar with the area in question. The member's statement about her visit was not explored because it was unimportant.

[39] Murray v Council of Municipality of Rockyview No. 44 (1980) 12 MPLR 161, a case on which Mr Gallagher placed reliance, was quite a different sort of matter. There some members of a board attended by themselves other sites of similar operations of development to that which they were considering to determine for themselves the effect of such a development on a community. The Alberta Court of Appeal held that the members of the board who carried out the investigation "entered into the arena and became active participants in adducing evidence ... they became witnesses and judges." There was no error of law in a member of the Tribunal attending the overpass the better to understand the evidence which had been adduced by way of map, report and oral evidence in considerable detail.

[40] I have concluded that the Tribunal did fall into error in its approach to the Act and the construction of s 119 when it refused to admit the statements of the residents sought to be put in evidence by ALH. Whether the refusal to admit the statements on behalf of Mrs Schubert constituted an exercise of discretion only or whether the Tribunal took into account an irrelevant consideration or failed to have regard to a relevant matter so as to be reviewable does not matter. A consideration of the reasons of the Tribunal demonstrates that it considered the matters which it was required to consider under s 116 of the Act and the further consideration of the excluded statements would have had no impact on that decision.

[41] The appeal is dismissed and, unless there are submissions persuasive to the contrary, with costs.