58 It is evident from the provisions of the Act previously referred to that I must consider the concepts of detriment to the area in which the hotel is situated and the minimisation of harm in relation to the misuse and abuse of alcohol. I must also have regard to the facilitation of the development of a diversity of licensed facilities reflecting community expectations.
59 I found Mr Cameron Smith to be a straightforward, honest witness and I accept his evidence. I am satisfied that he has experience in the operation of hotels and that the hotel is professionally run, and it is relevant that he works at the hotel 6 days per week. It appears that the two of the directors of the licensee have experience in hotel management. There has been a substantial history of noise complaints in relation to the hotel. However, since it was granted a transfer of the licence in 2003, the licensee has sought to improve the management of the hotel and protect the amenity of nearby residents in a number of ways as was acknowledged by Mr Wickham and Mr Kelsey.
60 For example, the management plan has been put in place which includes provision for crowd controllers on nights there is live entertainment, two security cameras operating 24 hours a day monitoring the outside of the building along Bay Street and Spring Street North, and signage on the Bay Street entrance asking patrons to leave quietly. The rear windows of the toilets and the windows facing Bay Street have been double glazed and soundproof curtains have been installed at the rear of the stage which backs on to Bay Street. The two airlock doors now operate properly. In my view the applicant's concerns about the management of the hotel and the licensee's ability to control patrons have been adequately addressed.
61 The evidence and material does not establish that the granting of the variation would be conducive to or encourage the misuse or abuse of alcohol and there was no persuasive evidence to support the concern of the applicant or residents that the variation will increase vandalism or endanger residents. I take comfort from the view expressed by Sergeant Shiell that the incident on 5 February 2005 did not cause him to change his view that the variation should be granted and that he could not recall an occasion when police were called to an incident at a Trivia or comedy night. Further, the material before me does not establish that there is no security outside the hotel, that the licensee has demonstrated inappropriate management of intoxicated patrons and that it lacks concern for the local neighbourhood, as asserted by the applicant.
62 I accept that the entertainment proposed on a Thursday and Sunday night may detract from the amenity of the area in that it is likely to attract more patrons on those nights, resulting in increased noise when patrons depart the hotel either at the end of the entertainment or closing time, parking issues and increased traffic movement. I accept that parking is at a premium in the area and that additional numbers of patrons on Thursday and Sunday nights will exacerbate the problem.
63 However, the amenity issues in relation to the type of entertainment proposed by the licensee are not of the same nature as those arising from the concept of live entertainment when used in the liquor industry. In this industry live entertainment is about entertainment such as bands and rock groups using amplified music and the earlier permit would have been granted in that context. When people leave a venue providing such entertainment they have been exposed to a high volume music environment and they are likely to be excited and noisy, with a consequent detrimental impact on amenity. This has clearly been a justifiable matter for concern of residents on Friday and Saturday nights.
64 In contrast, patrons attending comedy or Trivia nights or in the environment of acoustic music are likely to be quieter as they have not been subjected to a high volume of music. I accept Mr Gutteridge's submission that such entertainment is low key in nature. In such circumstances, when patrons leave the hotel there will be a lesser impact on the amenity. Further, issues of noise, as Mr Devlin submitted, could to some extent be dealt with by signage and supervision.
65 On the evidence before me the detriment to amenity will not be significant and it should be balanced against the diversity of facility proposed by the licensee. I accept Mr Smith's evidence that acoustic music will attract a different audience to a live entertainment audience and that there is a demand for such entertainment. In my view the licensee's aim of a more family oriented environment is consistent with the type of entertainment proposed. The applicant conceded, rightly in my view, that the entertainment proposed would appeal to a cross section of the community.
66 It is of some relevance, as the applicant and residents acknowledge, that residents living close to the hotel should expect a lesser level of amenity than if they were living near a hotel in a pristine residential area. Here, as the respondents pointed out, the hotel, whilst opposite a Residential Zone was in a Business 1 Zone.
67 I accept that the licensee has endeavoured to increase the clientele of the hotel. This is apparent from the change to the service in providing meals and the structural alterations to the hotel. The licensee should not be criticised however from seeking a reasonable return on its investment.
68 The applicant alleged that the licensee had acted with stealth and deception to obtain the variation. There is simply no evidence to support the allegation. It was entirely appropriate for the licensee and Council to have discussions as to any terms acceptable to the Council and I accept Mr Gutteridge's submission that it was in order for Council and the licensee to have such discussions in the context of the Council's licensing role. It was also proper for the Panel and the Director to have regard to the Council's views when reaching its decision. I agree with the Panel however that it was regrettable that the resident objectors did not learn of the discussions until the Panel hearing.
69 The applicant referred to the increased activity at the hotel since the present licensee has taken over including ineffective waste management, increased truck deliveries and kerbside trading. He conceded during cross-examination by Mr Devlin that he did not know of any breaches by the licensee in relating to trading on the footpath. Whilst footpath trading caused noise, he agreed that Bay Street was a major road and that noise from that street would override noise from trading. In any event, his concern in relation to truck deliveries was not directly relevant to the issue for consideration.