Victorian Civil and Administrative Tribunal|2001-12-12

Jones v Baw Baw SC [2001] VCAT 2337 (12 December 2001)

OCCUPATIONAL AND BUSINESS REGULATION LIST NO. 2001/B35

Planning - extension of trading hours of hotel - hotel in `residential precinct' of historic country town - whether extension of trading hours consistent with planning controls and character of neighbourhood - Baw Baw Planning Scheme - Walhalla Design and Development Guidelines - Planning and Environment Act 1987 s.47

Liquor licensing - extension of trading hours of hotel - hotel in `residential precinct' of historic country town - whether extension of trading hours compatible with amenity of area - nature of review - recommendations of Liquor Licensing Panel - concept of amenity - uniqueness and special character of locality - importance of service provided by hotel to residents and tourists - Liquor Control Reform Act 1998 ss.29, 45, 47, 87.

Medium Neutral Citation [2001] VCAT 2337

1. The decision of the Director of Liquor Licensing made on 1 June 2001 is varied.

2. The General Licence No 31920897 issued to the Applicants with respect to the Walhalla Family Hotel ("the licensed premises") is varied, as follows:

(iii) Good Friday and Anzac Day: between 12 noon and 11 pm

specified between 7 am and 12.30 am the following morning -

s on every public holiday declared to be so by the Government of Victoria (but not including Good Friday and Anzac Day)

s where a public holiday falls on a Friday, on the following Saturday

s where a public holiday falls on a Monday, on the preceding Saturday

s on five further evenings in each calendar year provided that in respect of each of the five additional evenings written notice of intention to trade is displayed on the front of the licensed premises (but not on a door which is left open) at least fourteen clear days prior to the date upon which it is intended to open the hotel until 12.30m and provided further that the permit holders/licensees not harass, abuse or impede any person who desires to inspect the said notice

(i) No amplified music (including live entertainment from bands, singers or juke boxes) is permitted on the licensed premises after 11.00 pm on any day, other than on New Year's Eve or a day specified in sub-paragraph (a)(iv).

(ii) No amplified music (including live entertainment from bands, singers or juke boxes) is permitted on the licensed premises after 11.30 pm on days specified in sub-paragraph (a)(iv).

(iii) After 11 pm on any day, only those part of the licensed premises within the hotel building, including the verandah may, be used for the supply and consumption of liquor.

(iv) The licensees must erect a clearly legible sign inside the hotel premises alongside the main entrance door of the licensed premises in the following terms:

The sign shall be no less than 400mm by 400mm and shall be erected and maintained to the satisfaction of authorised officers of Liquor Licensing Victoria or the Victoria Police.

(v) The licensees must establish and maintain a Complaints Register which shall record any complaints received about the conduct of the licensed premises. Such Register must record the nature of complaint, the name of the person or persons making the complaint and what action (if any) was taken in response to the complaint. The Complaints Register must be available for inspection by authorised officers of the Liquor Licensing Victoria and the Victoria Police.

3. In all other respects the terms and conditions of the Licence shall remain in force including, without limiting the foregoing, the provisions as to Type Of Licence and Noise and Amenity

1. The decision of the Responsible Authority refusing a permit with respect to extended trading hours is set aside.

2. The Responsible Authority must issue a permit to extend the hours of trading of the hotel situate upon the subject land ("the hotel") in accordance with and subject to the following conditions

(iii) Good Friday and Anzac Day: between 12 noon and 11 pm

specified between 7 am and 12.30 am the following morning -

s on every public holiday declared to be so by the Government of Victoria (but not including Good Friday and Anzac Day)

s where a public holiday falls on a Friday, on the following Saturday

s where a public holiday falls on a Monday, on the preceding Saturday

s on five further evenings in each calendar year provided that in respect of each of the five additional evenings written notice of intention to trade is displayed on the front of the hotel (but not on a door which is left open) at least fourteen clear days prior to the date upon which it is intended to open the hotel until 12.30m and provided further that the licensees not harass, abuse or impede any person who desires to inspect the said notice

(b) the following conditions are to be added to the Permit:

(i) No amplified music (including live entertainment from bands, singers or juke boxes) is permitted on the hotel premises (including the beer garden) after 11.00 pm on any day, other than on New Year's Eve or a day specified in sub-paragraph (a)(iv).

(ii) No amplified music (including live entertainment from bands, singers or juke boxes) is permitted on the hotel premises (including the beer garden) after 11.30 pm on days specified in sub-paragraph (a)(iv).

(iii) After 11 pm on any day, only those parts of the hotel premises within the hotel building, including the verandah may, be used for the supply and consumption of liquor.

(iv) The permit holder/licensees must erect a clearly legible sign inside the hotel alongside the main entrance door in the following terms:

The sign shall be no less than 400mm by 400mm and shall be erected and maintained to the satisfaction of the Responsible Authority.

(v) The permit holders/licensees must establish and maintain a Complaints Register which shall record any complaints received about the conduct of the hotel. Such Register must record the nature of complaint, the name of the person or persons making the complaint and what action (if any) was taken in response to the complaint. The Complaints Register must be available for inspection by authorised officers of the Responsible Authority.

(vi) Noise emissions from the hotel (including the beer garden) must comply with State Environment Protection Policy N-1, as though the premises were commercial or trade premises within a quiet residential zone, and the Interim Guidelines for Noise Control Of Noise from Industry in Country Victoria, to the satisfaction of the Responsible Authority.

(vii) Noise emissions from the hotel (including the beer garden) must comply with State Environment Protection Policy N-2 (Control of Music Noise from Public Premises).

________________________ ___________________

1. There are two applications before the Tribunal. The first is an application to review a decision of the Director of Liquor Licensing made on 1 June 2001 pursuant to the Liquor Control Reform Act 1998 varying a license with respect to the Walhalla Lodge Family Hotel, Main Road, Walhalla. The applicants, who are the licensees, had sought an extension of the hours of operation of the licence. Previously, the hotel was required to close each day at 11.00 pm (apart from New Year's Eve when, apparently, there is a State-wide extension until 3.00 am).

2. The application for variation sought variation in the hours of operation of the licence to 1.00 am, except on Sundays, Good Friday and the Thursday prior to Good Friday so that the hours of operation would be:

3. The Director granted the application in part. Hours of operation were extended to 1.00 am on five evenings in each calendar year, with written notice to be given to the Licensing Inspector at least 21 clear days prior to each date upon which it was intended to operate the hotel to 1.00 am. Further, written notice on the front of the hotel premises was required to be posted at least 21 clear days prior to each date upon which it was intended to open the hotel until 1.00 am.

4. The second application is to review a decision of the Responsible Authority made on 14 March 2001 pursuant to the Planning and Environment Act 1987 and the Baw Baw Planning Scheme refusing a planning permit for the extension sought.

5. Considerations relevant to the two applications overlap. Although no formal order has been made for the consolidation of the applications, it has been convenient for us to express our conclusions in a single decision

6. The applications were heard at Moe on 16 October 2001 and at Morwell on 19 October 2001. The Tribunal viewed the hotel and surrounding area on 19 October 2001.

7. The Director did not appear at the hearing. In a letter to the Tribunal dated 15 October 2001, Denis Lockington, on behalf of the Director, drew attention to four decisions of the (former) Liquor Licensing Commission, additional to those set out in the written submission filed on behalf of the applicants.

8. The only comment made by Mr Lockington in his letter is as follows:

"The presence of the statutory condition (s.17 Liquor Control Reform Act 1997) against undue detriment to amenity both during and immediately after extended hours of trading, and the provision in s.38 enabling objection by any person on the ground of detriment to or detraction from amenity, provide a different context to that of the Liquor Control Act 1968."

9. The applicants ("licensees") were represented at the hearing by Mr G Rice of counsel. Mr Peter McWhinney, Senior Statutory Planner, appeared on behalf of the Responsible Authority. The following objectors appeared, gave evidence and made submissions: Lois Dye, Barbara Smith, John Patterson, Hermina Zeggelink and Andrew Stevens.

10. Each of the licensees gave evidence. Reginald Ferris, Jillian Ferris and Henry Joyce, each of whom is an occupant or owner of nearby or adjacent land, were called as witnesses on behalf of the licensees. The licensees also called Paul Erbs, an adviser in occupational health and safety, to give evidence of noise levels emanating from the hotel and Senior Constable Ian Norton, Victoria Police, to give evidence concerning the operation of the hotel.

11. A number of letters from residents were tendered. A petition by hotel patrons was also tendered.

12. It is not our intention to summarise or refer to the entirety of the evidence presented. It ranged far and wide, in part because of the unfortunate animosity which has developed between the licensees and the objectors. There are allegations and counter-allegations as to the manner in which the hotel has operated, the behaviour of the licensees, the behaviour of some of the residents and the behaviour of hotel patrons. We had the advantage of listening to and evaluating the evidence over a day and a half. We will refer to the evidence to the extent necessary to explain our conclusions.

13. At this stage it is appropriate that we place the applications in the appropriate planning setting

14. The Walhalla Lodge Family Hotel is located on the eastern side of Main Road, Walhalla. The township lies in a narrow natural valley along Stringers Creek. Main Road runs between the creek and the hotel.

15. There are three dwellings on land to the north of the hotel. On land rising steeply from the rear of the hotel are further dwellings, vacant land and a bed and breakfast establishment operated by Mrs Dye. Access to these dwellings is via a narrow pedestrian track or an unsealed road (Church Hill Road).

16. Under the Baw Baw Planning Scheme, the site is located in a Special Use 1 Zone (Walhalla Special Use Zone). The purposes of the zone are:

* To conserve and enhance places of scientific, aesthetic, architectural and historic importance or special cultural value.

* To ensure that development is compatible with the importance, character and appearance of this historic area.

* To provide for low scale housing development consistent with the town's permanent and semi permanent residential role.

* To provide for low key commercial development consistent with the town's tourist role.

* To ensure that land use or development is compatible with the environmental capabilities of the historic area.

* Whether the site is suitable for the use and will not be detrimental to the traditional activities of the neighbourhood.

* Whether the use caters for people primarily not living in the zone and whether it will have a detrimental effect on the natural resources and environment of the neighbourhood.

Baw Baw Shire's reliance on the natural environment is significant for both agriculture and tourism. The relatively unspoilt nature of the area in close proximity to Melbourne offers significant opportunities for tourism development. The tourism resources include Mount Baw Baw, Strzelecki Ranges, Mount Worth State Park, Walhalla Township, Walhalla Goldfields Railway, the Gourmet Deli Trail and Baw Baw's location on the Princes Highway that services the Greater Gippsland Tourist Region."

19. There is a specific policy in the Scheme (Clause 22.05-3) with respect to the Walhalla Tourist Development Area, as follows:

"Walhalla Township is one of the State's important heritage asset. Its long term protection and development as a major heritage resource and tourism attraction is supported. It is policy that the Walhalla Design and Development Guidelines - July 1999 is considered in deciding on an application to use or develop land."

20. The Walhalla Design and Development Guidelines state:

"Walhalla Township is recognised as a significant historic township and popular tourist destination. The visual character of Walhalla and the historic features of the township are Walhalla's major attractions for residents and visitors alike."

21. The subject site is located in the Southern Residential Precinct for which provision is made in the Guidelines. The desired characteristics of the Southern Residential Precinct are:

* Predominantly residential and accommodation based commercial.

* Cottage industries and tourist attractions to be compatible with residential amenity.

* Careful consideration of site suitability prior to development, particularly fire risk, erosion and wastewater treatment.

* Development style complementary to the gold era style.

22. Mr Rice submitted that the significance of the "Southern Residential Precinct" was greatly overrated by the objectors. He said the only existing buildings are those owned by objectors and that no new dwelling has been constructed for many years. The fact is, however, that Mr and Mrs Smith have obtained a building permit to construct a dwelling to the north of the hotel. When so constructed, it will be the nearest dwelling to the hotel. Mr and Mrs Smith are entitled to the benefit of the Guidelines. It is no answer to say that no other house has been built in the "Southern Residential Precinct" for years and that no other dwelling is in immediate contemplation. The Responsible Authority has developed a long-term strategy for the planning and development of Walhalla. The Smiths may be the first to take advantage of that strategy. So be it: they are entitled to rely upon it.

23. It is to be emphasized, however, that the Guidelines acknowledge the presence of the hotel and its importance in the provision of hospitality. Given that the hotel is non-residential, the hospitality to which the Guidelines refer is, obviously, the provision of food and beverages. There is, nonetheless, an important distinction to be drawn between hotel operations in the Southern Residential Precinct and similar operations in the "Historic Town Centre Precinct", where the objective is "to encourage predominantly retail, tourist information, hospitality and tourist related uses."

24. At this point it is appropriate to introduce the relevant liquor licensing criteria.

Nature of Review under Liquor Control Reform Act 1998

25. The decision under review was made on an application by the licensees pursuant to s.29 of the Act for variation of the licence. Section 87 of the Act permits the licensees to apply to the Tribunal for review of the Director's decision. The Tribunal must review the decision de novo, standing in the shoes of the Director.

26. The application to the Director was contested. Therefore, in accordance with the requirements of s.45, the Director referred the application, and each objection to it, to the Liquor Licensing Panel. The Panel provided a report, with recommendations. Pursuant to s.47, the Director was required to determine the application "after giving full consideration to the recommendations of the Panel.

"The Director may make any enquiries concerning a contested application he or she thinks fit, but is not required to give any person an opportunity to be heard concerning the application."

28. The Tribunal agrees with the following comments in Bourke's Liquor Law Victoria, relating to s.47(1).

"The Direction is required by s.47(1) to give full consideration to the recommendation of the Panel. This is a higher order of requirement than that of the former Liquor Licensing Commission pursuant to s.78 of the 1987 Act. This is appropriate as the hearing under the 1998 Act is conducted by the Panel whereas the Liquor Licensing Commission heard evidence and arguments from the parties first hand."

29. VCAT is empowered to review the decision of the Director, not the recommendations of the Panel as such. VCAT therefore has the same obligation as the Director under s.47, namely to give full consideration to the recommendations of the Panel. Likewise, VCAT can make "enquiries" concerning a contested application.

30. The Panel, constituted by Mr James Brassil AM, conducted a hearing at Walhalla on 2 May 2001. Ms Zeggelink, Mr Stevens, Mrs Dye and Mrs Smith gave evidence. Mr Patterson did not attend but provided a written submission. The licensees gave evidence. A letter from Mr and Mrs Ferris was presented. It would appear from the Panel's report that there was no evidence from the Police.

31. The Panel expressed the following views, inter alia:

"The application for variation of hours on a permanent basis had no objection from the Police but has not been granted a Planning Permit by the Baw Baw Shire Council. It should be noted that one of the grounds for objection by the Shire Council was that the application was contrary to the Guidelines, but at the time the decision was made these had not been approved by the Minister. However, it is not for the Panel to comment further on this aspect.

From the submissions made by the objectors taken along with the submissions of the licensees and the Panel members' own view of the topography of the Walhalla township, it is difficult to conclude that there should be open-ended variations in trading hours which have been sought in this application. In any case, as the Shire Council has not granted a Planning Permit, the application cannot be successful.

But there is clearly some justification in the expressed desire of the licensees to have the opportunity to trade, on a limited number of evenings, to meet a perceived demand from visitors to the town and, also, to permit their business to prosper. It is relevant that the other premises in the township have the right to trade to 1.00 am. On the other hand the residential objectors have a right to expect that the amenity of this unique and historic township will be maintained.

In the submissions there was support from some objectors and an acceptance by the licensees that a restricted number of trader evenings would satisfy any real demand for extended hours. It was not possible to get agreement on the detail of how this would operate.

Having considered all the views put to the Panel, orally and in writing, it is the Panel's view that a variation of hours be granted on not more than five evenings per year, these to be only on Fridays, Saturdays or public holidays, that written notice three weeks prior be given to the Licensing Inspector and by public notice displayed on the front of the hotel premises and at the Mechanics Hall.

It is noted that the licensees have undertaken that the music on these occasions will be acoustic and not amplified so as to contravene the relevant EPA Guidelines.

There will, of course, be a need now to have the Baw Baw Shire consider whether it will issue a Planning Permit for the proposed variation of hours."

32. The Panel recommended that a variation of hours be granted with conditions that:

(a) trading to 1.00 am be permitted on five evenings in each calendar year in addition to any State-wide concessions such as New Year's Eve;

(b) such extended trading be restricted to Fridays, Saturdays or public holidays;

(c) written notice of intention to trade on any of these five evenings be given to the Licensing Inspector at least 21 clear days prior;

(d) written notice of intention to trade on any one of these evenings be displayed on the front of the hotel premises and at the Mechanics Hall at least 21 clear days prior.

33. Although it is difficult to determine the precise extent to which the evidence before VCAT differs from the evidence before the Panel, the following points can be made. First of all, the Panel did not have evidence of the kind presented by Mr Paul Erbs, the occupational health and safety adviser who took readings of noise emanating from the hotel. On the other hand, the Tribunal is of the view that Mr Erbs' opinion was substantially discredited in cross-examination by Mr Patterson. This is not a personal criticism of Mr Erbs: he only too willingly conceded the shortcomings in his evidence.

34. The Panel had a written submission from Mr Patterson, whereas he gave quite extensive oral evidence to the Tribunal.

35. Mr and Mrs Ferris, who own land directly behind the hotel on which they camp, gave credible evidence which leads us to conclude that the complaints made by the objectors are, to some extent, exaggerated.

36. The Tribunal also had the advantage of the evidence of Senior Constable Norton, Officer in Charge and the sole police member at the Rawson Police Station. Senior Constable Norton has responsibility for the Walhalla area. He has been Officer in Charge at Rawson ever since the applicants acquired the hotel. He told the Tribunal that he has had only one complaint about the operation of the hotel. He attended last summer at about midnight in response to a noise complaint. He said there were 50 to 100 people in attendance and that the outdoor beer garden area was "full". He could hear a country and western singer. He said he did not consider the noise "undue". He said he made an offer to Ms Zeggelink and Mrs Dye last summer to attend at their houses to listen to the noise, but they have not taken advantage of the offer.

37. We attach considerable weight to Senior Constable Norton's evidence. In combination with other evidence, it satisfies us that the hotel is basically well managed and that, in comparison with most hotels, the difficulties which have arisen and which are likely to arise in regard to the behaviour of patrons are minimal. We do not, however, attach any great weight to the offer made to Ms Zeggelink and Mrs Dye. As was pointed out, concerns about noise are likely to arise late at night. By the time Senior Constable Norton is summoned and travels from Rawson to Walhalla, the noise may well have subsided. If Senior Constable Norton was stationed in the next street it would be quite different, but he has to travel from another town.

38. Mr Henry Joyce did not give evidence before the Panel, but gave evidence before the Tribunal. He has not been at all troubled by noise from the hotel, though it must be emphasized that there is substantial rock and earth embankment between the hotel and the caravan he occupies. Our view is that the embankment would substantially attenuate any noise emanating from the hotel. On the other hand, Mr Joyce is a patron of the hotel and his evidence satisfies us that it is a well-run and, usually, an agreeable place.

39. No matter how well hotels are run, they sometimes attract individuals who behave badly, either inside the hotel or in the precincts of the hotel. The Tribunal was not surprised to hear and read of what sometimes occurs late at night, especially when the hotel closes. Noisy conversation and, occasionally, offensive language in the street, car engines being revved and doors slammed and some other unpleasant manifestations of excessive consumption of alcohol. Most people who live in close proximity to a hotel will be aware of such things. Of course, those who choose to purchase or build houses near hotels must to some degree expect them. Each of the objectors is in that category. But each of them has said, and the Tribunal accepts, that their expectation was that the hotel would close at 11.00 pm. They make the valid point that 11.00 o'clock closure means that some patrons do not leave the licensed premises until 11.30 pm and that the noise continues until at least then, and sometimes even later. They say they are prepared to put up with what occurs in and around the hotel (provided it is within the law) until 11.00 pm or even 11.30 pm, but not until 1.30 am.

40. Much has been said about noise generated by musical entertainment. Such noise can, obviously, be controlled by the imposition of appropriate conditions. The licensees indicated their willingness to submit to such conditions. But control of musical entertainment will not entirely address what we regard as the legitimate concerns of the objectors. The interior of the hotel is very small. In warmer weather, patrons will spill out onto the verandas and into the beer garden, even late at night. The normal conversation of such patrons should not trouble the residents. But hotel patrons are often noisy, especially late at night. The noise will not necessarily be the result of intoxication: it might be mere exuberance. But it will be present, and likely to be experienced not only until the service of liquor ends, but until patrons leave the vicinity of the hotel.

41. We are satisfied that the ambient noise in this precinct at night is minimal: perhaps only the babbling of the stream. The valley has been described as an amphitheatre. We needed little convincing that noise generated on the verandas of the hotel, in the beer garden and in the street would be readily transmitted to residences in the immediate vicinity, though the evidence of Mr and Mrs Ferris satisfies us that it is not of the order suggested by some of the objectors. People react differently to noise. It bothers some and bothers others less. Mr and Mrs Ferris may be in the latter category. Most of the objectors are very definitely in the former category.

42. The objects of the Liquor Control Reform Act 1998 ("the Act") are set out in section 4 and include:

* Ensuring as far as practicable that the supply of liquor contributes to, and does not detract from, the amenity of community life;

* To facilitate the development of a diversity of licensed facilities reflecting community expectations;

* To contribute to the responsible development of the liquor and licensed hospitality industries.

"Any person may object to the grant, variation or relocation of a licence on the ground that the grant, variation or relocation would detract from or be detrimental to the amenity of the area in which the licensed premises or proposed licensed premises are situated."

44. In Re Application of Australian Safeway Stores Pty Ltd, Liquor Licensing Commission (Victoria), Full Commission, No. 665, 18 May 1999, unreported, Commissioners Urquhart and Angell said that:

" . . . the notion of amenity is a wide and flexible concept and includes matters which interfere with the enjoyment of the relevant area by members of the local community; personal and subjective factors such as the expectation and appreciation of members of the relevant community and issues of the pleasantness and harmony of the area."

45. This statement was refined in Black v Liquor Licensing Victoria, VCAT, Kellam J and Member Angell, No. 1999/066874, 25 November 1999, unreported, where it was said:

"We conclude that this is in the nature of an objective test and does not refer to the effect the granting of the licence would have on the individual objector unless it also affects the amenity of the area."

"The grounds required to be established pursuant to s.38 of the Act are that it would detract from or be detrimental to the amenity of the area itself, and not of an individual, unless we find that the personal amenity of an individual objector was also included in the amenity of the area."

46. In Avery v Director of Liquor Licensing Victoria, Deputy President Sandra Davis and Senior Member Urquhart, having referred to a number of authorities, summarised the concept of amenity. So far as is relevant to this case, the concept

* includes the quality which a neighbourhood has of being pleasant or agreeable;

* is not confined to the negative factor of freedom from physical discomfort through the effects of noise and smell;

* includes harmony and coherence of the environment and its enjoyment for any permitted use;

* takes into account the village or community "feel" of the particular area, the particular characteristics of the proposed application and the effects these would have on the area in question.

47. In the consideration of the concept of amenity, reference is often made to dictionary definitions. The Oxford English Dictionary, Second Edition 1989, gives a number of definitions including -

"Pleasant, quality of being pleasant or agreeable - of places, their situation, aspect and climate."

48. The Tribunal accepts that considerations of amenity largely mirror the Responsible Authority's planning strategy. Most of those who have houses in Walhalla, be they residents or holiday makers, do so to experience the extraordinary beauty and tranquillity of that place. But people have different ways of experiencing and enjoying history and beautiful bush settings. There was a thread running through some of the evidence that those who enjoy late night entertainment in a hotel are not the sort of people who can properly appreciate the beauty of Walhalla. The Tribunal would certainly not endorse such a view. Moreover, Walhalla is being developed and promoted as a tourist destination, not only for those who are able to stay in permanent accommodation, but for campers and day trippers as well. The hotel provides an important service for members of each of these groups. Mrs Dye said some of her residents eat there because there is nowhere else to go during the week. This very statement underscores the service provided by the hotel to those who reside in and visit Walhalla. The Tribunal accepts that licensees seeking a reasonable return on their investment can legitimately expect to operate the premises, at times, beyond 11.00 pm.

49. After giving full consideration to the report of the Panel, and having regard to the additional information provided at this hearing, and having considered the submissions made on behalf of the licensees and the objectors, the Tribunal concludes that to allow an extension beyond 11 pm on only five nights per year is unjustifiably restrictive. But we are entirely unconvinced that there should be an unrestricted extension of the licence until 1.00 am, as sought. On the contrary, we are concerned that the supply of liquor until 1am on any night will be productive of noise and other detriment to neighbours until 1.30am or beyond as patrons depart the hotel. Therefore, as a `trade-off' for extended hours on a greater numbers of night, we will require that service of liquor cease at 12.30 am so as to ensure, as far as possible, that neighbours are not disturbed after 1 am.

50. In deciding to extend the hotel's hours of trading, we have focussed on holiday periods. These are the times when extended hours are likely to be most beneficial to patrons and to the licensees. Further, neighbours would have advance knowledge of when the hotel is likely to be open and can make their arrangements accordingly.

51. Additionally, we are persuaded that a half-hour extension of trading hours on Saturday nights would give the licensees scope to provide a better service to residents and tourists, yet not be inconsistent with the amenity considerations which underpin this decision. We are mindful that cessation of liquor service at 11.30 pm may result in some noise in the environs of the hotel until about midnight.

52. We remind the licensees of the provision of s.17 of the Liquor Control Reform Act 1998 which make it a condition of every license that authorises the supply of liquor outside ordinary trading hours -

" . . . that the licensee does not cause or permit undue detriment to the amenity of the area to arise out of or in connection with the use of the premises to which the license relates during or immediately after the hours outside ordinary trading hours to which it relates".

53. We have also placed an embargo on amplified musical after 11.30pm on nights when hours are extended until 12.30 am, and 11 pm otherwise. We have applied this restriction because we are unconvinced that the noise of live musical entertainment noise can be contained so as to meet the requirements of State Environment Protection Policy N-2.

54. We are also of the view that liquor service and consumption outside ordinary trading should be contained within the hotel premises, including the verandah. We have excluded the beer garden because we are not satisfied that noise, from music or patrons, can be adequately controlled.

55. We have included a condition requiring display of a sign within the hotel premises requesting patrons to respect the tranquillity of the area when departing from the hotel.

56. We have also placed a condition requiring the establishment and maintenance of a Complaints Register, to be available for inspection by police and authorised officers of the Responsible Authority and Liquor Licensing Victoria. This will assist the licensees and authorities to analyse any further allegations involving the operation of the hotel.

57. Finally, we encourage a spirit of co-operation between the licensees and objectors. It seems rather pointless to live in such a beautiful place unless one can get on with one's neighbours.

________________________ ___________________

Environment Act 1987

Liquor Control Reform Act 1997

Control Reform Act 1998

Jones v Baw Baw SC [2001] VCAT 2337

At a glance

Court

Decision date

Source

Judgment (135 paragraphs)

Jones v Baw Baw SC [2001] VCAT 2337 (12 December 2001)

Parties

Legislation Cited (4)