Hurstville City Council v Williams & Anor

P: Mr P Rigg (Solicitor) COUNSEL : 1D: Mr S Austin QC, Mr A C Casselden 2D: Submitting Appearance P: Deacons Graham & James SOLICITORS : 1D: Phillips Fox 2D: I V Knight CATCHWORDS : Liquor Licensing - appeal from Licensing Court - whether error of law - whether inappropriate location for hotel - whether decision was one of which no reasonable decision-maker could have arrived. LEGISLATION CITED : Liquor Act 1912, s 29 Liquor Act 1982, ss 104, 146 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 CASES CITED : House v The King (1936) 55 CLR 499 Maynard v Dabinett [1999] NSWCA 295 Donges v Ratcliffe (1975) 1 NSWLR 501 DECISION : Dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13 JULY 2000 10906/00 - HURSTVILLE CITY COUNCIL v Andrew Denzil WILLIAMS & ANOR JUDGMENT 1 HIS HONOUR: This is an appeal from a decision of the Licensing Court of New South Wales given on 20 March 2000. Section 146 of the Liquor Act, 1982 limits the appeal to a question of law. 2 In its decision, the Licensing Court held that an application by the first defendant, Andrew Denzil Williams, for the conditional grant of an hotelier's licence for premises at 227 Forest Road, Hurstville, be granted and that, upon the issue of the licence, certain conditions be imposed. Thirty-six conditions which I need not set out were specified. During the course of the hearing before the Licensing Court, objections by the State Rail Authority and by a number of private objectors were settled and withdrawn on the understanding that conditions would be imposed upon the licence if granted. Those conditions were included in the Licensing Court's order. The remaining objector to the grant of an hotelier's licence was Hurstville City Council ("the Council"). The Licensing Court noted the substance of the Council's objection as follows: · "That the quiet and good order of the neighbourhood will be disturbed; · That the granting of the application will be contrary to the public interest because: i) The amenity of the neighbourhood will be unduly affected and disturbed." 3 The Council had submitted like objections when an application by Sandtara Pty Limited for planning approval in respect of the premises had come before the Land and Environment Court of New South Wales. On 9 December 1998, the Land and Environment Court, after a contested hearing, granted development consent in accordance with twenty conditions which it specified. The conditions dealt with many of the issues which were later raised before the Licensing Court. The Licensing Court imposed even more restrictive conditions upon the operation of the hotel premises. 4 In these present proceedings, the grounds of appeal have been expressed as follows:

"(i) That the Second Defendant erred in law in relation to its rejection of the Plaintiff's argument that the granting of the application by the Second Defendant would result in the inappropriate location and distribution of licensed facilities in the subject neighbourhood.

(ii) That the Second Defendant erred in law in the exercise of its discretion by having regard to irrelevant considerations and incorrectly disregarding relevant considerations in the exercise of that discretion.

(iii) That the Second Defendant erred in law in arriving at a decision that was not reasonably open to it on the evidence before it." 5 Although those grounds use the term "erred in law", it is clear that the Council challenges the merits of the decision of the Licensing Court on the ground that no reasonable decision-maker could have come to that decision. That ground is the traditional ground for the review of administrative decisions which was enunciated by Lord Greene M.R. in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 229-230. It is well established in Australia: see, eg, Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40-42. It is also a ground upon which a discretionary judicial determination may be set aside: see House v The King (1936) 55 CLR 499 at 504-505. I accept, and the contrary is not argued, that a decision which was manifestly unreasonable in this sense may be set aside for an error of law under an appeal provision such as s 146 of the Liquor Act. 6 The Council opposed the granting of an hotelier's licence for the subject premises because the premises were in the centre of the Hurstville Shopping Centre, close to the Railway Station, close to a taxi rank and on a major street along which many school children and pedestrians would pass. The Council relied upon the evidence of Mr Stephen Brown, a town planner. Mr Brown had prepared a report which I shall not set out in full but which raised the following points:

"There is a real likelihood that twenty four hour operation of the proposed hotel/tavern will have a detrimental social impact on the town centre, given the potential for commuters to be arriving and departing by train from Hurstville station until approximately 2.30am on weeknights and 12.30am on weekends. In addition, 'nightride' buses operate until approximately 4.00am every day. It is therefore reasonable to anticipate that the proposed Hotel/Tavern will create an increased security risk to these travellers from potentially intoxicated and disorderly patrons of the proposed establishment. … … Further, due to the proximity of the site to the main station entrance, there is an increased probability that commuters will encounter anti-social behaviour by intoxicated persons. The best interests of the community will not be served should commuters be forced to access the station via an alternative route. … … In particular, the safety and security of persons in a nearby small park would be put at risk. … Proximity to schools and churches is also an issue to be taken into account. A high volume of children use Hurstville Station to travel to and from their places of education, including the Danebank school. Students walk past the subject site on their designated route from the station to the school. … In addition to the violence at other establishments, there have been problems resulting from intoxicated patrons moving from one premises to another as venues open and close. There are real concerns that the subject premises has the potential to attract large numbers of patrons in the early morning hours as other establishments 'wind up' for the night. In general, any detrimental social impacts from the existing establishments are likely to be exacerbated by the addition of another hotel/tavern in the middle of the Hurstville Shopping Centre." 7 The Council did not call any members of the Hurstville community or any neighbouring shopkeepers to give evidence. There was a distinct lack of primary evidence about the matters which were the subject of Mr Brown's complaints. I do not suggest that Mr Brown was not qualified to give the evidence which he did. That was not challenged. However, the members of the Licensing Court, operating as they did in the specialist field of liquor licensing, were well able to judge the potential for intoxicated and disorderly patrons of an hotel to cause problems. It is clear indeed, that the Licensing Court considered the potential problems that could result and took those problems into account in determining the conditions which it would impose upon the licence. The conditions dealt, inter alia, with the trading hours of the hotel, the activities which could be carried on in the hotel, noise, security, closed circuit video cameras, both within the premises and on the street in the vicinity of the premises, the number of persons permitted on the premises and many other matters, including the conditions that liquor may be sold only for consumption on the premises and that no patrons may leave the hotel with liquor. 8 There were many witnesses called on behalf of the applicant. The hearing took place over three days. I need not describe Mr Williams' evidence. Mr G W Smith, a planning consultant was called. Two reports from Mr Smith were tendered as was a draft plan of management. Mr Smith was cross-examined at considerable length. Mrs McLachlin was called. She was a resident who gave evidence as to the need for such a facility in the area. Mrs McLachlin was questioned about the effect on safety which the hotel may pose. The substance of Mrs McLachlin's evidence was that there had been problems in Hurstville with groups of young people, but such groups had been cleared away from the Hurstville Town Centre and she had not seen them for six months. She did not consider that the hotel would pose a problem. Mr Papadopoulos, a neighbouring shopkeeper, spoke in favour of the establishment of the hotel. Mr Papadopoulos was questioned about children and hotels. Miss Bevan, who worked at the Hurstville Town Centre, spoke in favour of the facility which the hotel would offer. Miss Bevan was asked about problems which had occurred in the area. She had herself been attacked on one occasion. She agreed that she would not wish to walk past a licensed hotel after working overtime on a winter's night. Mr Bowditch, a specialist in security, gave evidence as to security risks and as to potential of the hotel to disrupt the security of persons in the area. He expressed the view that he did not see any problem. Mr Kipps, who had a business in the Hurstville Town Centre, said that he had not experienced any rough or loutish behaviour in the area. Mr Reid, who was one of the persons involved in the partnership which was to operate the proposed tavern, was called to speak about the management of the hotel. 9 The applicant's evidence went well into the third day. The Council then called Mr Brown. The cross-examination of Mr Brown was quite brief. It was put to him that he probably had not had an opportunity of looking at "the latest raft of conditions". He agreed that he had not and he agreed that the conditions, which had not been considered by the Council, created a number of significant changes. Mr Brown agreed that the hotel's trading hours were to be reduced and that they would not exceed the acceptable hours specified in the Council's policy, that other hotels in the area traded at later hours and that the Council's policy had emanated as a result of concern about activities at those hotels. Mr Brown agreed that, despite the Council's concerns, it had not brought any application to restrict the trading hours of those hotels, notwithstanding that the Council's policy had been passed in 1997. Mr Brown agreed that the incidents that had given rise to the Council's policy on trading hours had occurred in the one or two years immediately before that policy had been passed. Mr Brown was asked about video surveillance and said that, irrespective of whether or not the hotel licence was granted, the Council was considering implementing measures by way of video surveillance and security patrols in the area, but that those steps had not been taken as yet. Mr Brown said that he was aware, in broad terms, that under s 104 of the Liquor Act, the Council and concerned shopkeepers or residents could bring proceedings before the Liquor Administration Board if problems arose. 10 Mr Brown was not specifically cross-examined about the issues raised in his report. But, to a large extent, Mr Brown's report passed by, rather than confronted, the applicant's case before the Licensing Court. In the course of the applicant's case, conditions had been developed to limit the hotel's potential to be a source of trouble and complaint. Mr Brown's report expressed concerns, but his report did not discuss the steps which were proposed to be taken to ensure that the hotel and its patrons did not present an unacceptable risk. The effect of his report was to raise concerns of a general nature. The applicant for the licence raised no challenge to the possibilities which Mr Brown adumbrated. The issue was whether the licence should be granted in the light of the conditions proposed. Unfortunately, Mr Brown had not studied the conditions and made no comment upon them in his evidence in chief. 11 I may say, without a great deal of discussion, that I could not hold that the judgment of the Licensing Court was manifestly unreasonable. The very fact that the Land and Environment Court also rejected similar arguments which the Council had put to it is a strong indication that the Licensing Court did not come to an unreasonable decision. Indeed, as the issue in the proceedings centred around the positioning of the hotel in the Hurstville Town Centre, near the Hurstville Railway Station and near a taxi rank, the issue would seem to have been, preeminently, a town planning issue. The Licensing Court gave its own consideration to the objections put forward. It seems to me that the decision of the Licensing Court was made on the basis of the substantial body of evidence which was before it and that its decision was clearly one at which a reasonable decision-maker could have arrived. 12 It was submitted by Mr P Rigg, the solicitor for the Council, that the Licensing Court did not deal with the substance of the case as put by Mr Brown. It was conceded by Mr Rigg, however, that the Licensing Court, in its reasons for decision, set out the substance of the objections of the Council and made findings of facts which were inconsistent with the Council's case. The Licensing Court said, inter alia:

"30. Having regard to the totality of the evidence before us, the nature of the proposal and the means of operation of the premises, including conditions as referred to, we do not find that there is any evidence upon which we can be satisfied that the operation of this tavern will cause disturbance to the quiet and good order of the community.

32. Having regard to all of the above evidence we do not find there is any fact which would warrant an adverse finding on the question of amenity.

33. We do not find the grounds of objection to be established." 13 It was submitted that the Licensing Court did not make it clear why it rejected Mr Brown's evidence. Reliance was placed upon the remarks of Giles JA, with whom Stein JA agreed, in Maynard v Dabinett [1999] NSWCA 295, where his Honour said at [17]-[18]:

"But it is necessary that the reasons show that attention has been given to the evidence critical to the issues in the case and that the basis of critical findings be apparent ( Soulemezis v Dudley (Holdings) Pty Ltd at 281; Mifsud v Campbell (1991) 21 NSWLR 725 at 728). The 'broad outline and constituent facts on which [the judge] has acted' should be apparent ( Soulemezis v Dudley (Holdings) Pty Ltd at 273 per Mahoney JA), or the 'essential ground or grounds on which the decision rests should be articulated', including why one conclusion rather than another is to be preferred ( Soulemezis v Dudley (Holdings) Pty Ltd at 280 per McHugh JA). As was said by Samuels JA in Strbak v Newton (NSWCA, 18 July 1989, unreported) - '… It is going too far to suggest that in every case a judge must submit the material before him or her to the most meticulous analysis and carry into judgment a detailed exposition of every aspect of the evidence and the arguments. What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that the reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.' The ability effectively to exercise a right of appeal guides, and sets a minimum standard for, the sufficiency of reasons ( Soulemezis v Dudley (Holdings) Pty Ltd at 280-1), always with regard to the particular circumstances." 14 It was submitted that, in paragraph 26 of the reasons for decision, when dealing expressly with the evidence of Mr Brown, the Licensing Court did not enunciate the reasons why it rejected the views which he had expressed. 15 Taking the reasons of the Licensing Court as a whole, it is clear that the Licensing Court took account of the concerns which Mr Brown expressed. The Licensing Court considered, however, that no particular problem arose because of the location of the premises and that the potential for the hotel to cause problems could be dealt with adequately by the imposition of the thirty-six conditions which it proposed to impose on the licence. The Licensing Court rejected Mr Brown's view that there would be a significant risk to Hurstville residents and commuters from intoxicated and disorderly patrons of the proposed tavern. 16 The last point put by Mr Rigg was that the Licensing Court posed the wrong test. Paragraph 30 of the reasons for decision concluded with a reference to "the quiet and good order of the community". Mr Rigg submitted that the test is not the "community" but the "neighbourhood". Mr Rigg relied upon the judgment of Rath J in Donges v Ratcliffe & Ors (1975) 1 NSWLR 501, where his Honour set aside a decision of the Licensing Court for lack of explicit consideration of the legally accepted construction. At 508, Rath J said:

"First, there is the general consideration that the Licensing Court has exclusive jurisdiction in the field of liquor license applications (s. 10), subject only to control by this Court on questions of law. It seems to me that the public interest requires that the Licensing Court should state its reasons with some particularity, so that it is apparent from its judgment, when an application is refused, not only what grounds of objection are upheld, but also the factual basis that the court has accepted for upholding those grounds of objection, as well as its understanding, in any case of doubt, of the legal principles applicable to the grounds of objection. I stress here, as this Court has in the past stressed, the importance of the Licensing Court defining the 'neighbourhood' that it considers relevant when there is an objection under s. 29(e): see Noble v Bishop [1972] 2 NSWLR 800 at pp 804, 805." 17 However, the matter before Rath J concerned a section of the Liquor Act, 1912, s 29(e), in the application of which a definition of "neighbourhood" was essential to the Licensing Court's task. In the present case, that was not important. The objections brought in the Licensing Court concerned the positioning of the proposed tavern in the Town Centre of Hurstville, close to the Railway Station and near the taxi rank. It was appropriate for the Licensing Court to refer to the "community" when discussing the objections and the factors relevant to them. Indeed, that was the term used by Mr Brown throughout his report. I am not satisfied that the Licensing Court made any error in its approach to the questions which it had to decide. 18 For these reasons, I am not satisfied that there is any error of law in the decision of the Licensing Court. The application in this Court must be dismissed with costs. **********

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