The decision of the Director is affirmed subject to the following conditions :

a

Live entertainment on Thursdays and Sundays is limited to Trivia nights, comedy or acoustic duos;

b

The front entry doors and airlock to Bay Street must :

i. Open inwards;

ii. Have fully functioning self-closing mechanisms in operation at all times of the day; and

iii. Not be propped open at any time.

c

All windows opening off the entertainment area must be kept closed, and heavy sound curtains drawn across those windows abutting the stage area during any live entertainment.

1 By application for review filed with the Tribunal pursuant to s 87 of the Liquor Control Act 1998 (the Act), the applicant sought to review a decision of the Director of Liquor Licensing (Director) to grant a variation of licence conditions for the Prince Alfred Hotel (hotel). The effect of the decision was to allow live entertainment on Thursday nights until 11.00 pm and Sunday nights until 9.00 pm in addition to live entertainment on Friday and Saturday nights until 1.00 am.

2 The grounds of the application for review were :

• The agreement between the licensees and City of Port Phillip was contemptuous of the statutory process of the independant (sic) panel for proper and impartial consideration of objectors views.

• Police research (Published in The Age - 14 April 2004) found crime, particularly assaults, increased at hotels with live entertainment and increases the MISUSE and ABUSE of alcohol.

• The Prince Alfred Hotel licensees consistently breach their conditions of licence with complete disregard to the community (12 months of an air-lock front door jammed open).

• All previous licensees variations (including Thursday and Sunday entertainment) have been deemed inappropriate by the responsible authorities as this is a very, very small hotel with no parking and inadequate occupational health and safety infrastructure.

• The Price Alfred Hotel first time licensees are inexperienced and have purchased an inappropriate business to return suitable profits for 5 partners.

3 In subsequent material filed with the Tribunal the grounds for review were expanded to include :

a. A settlement agreement between a City of Port Phillip Council and the Licensees before proceedings at Liquor Licensing Panel influenced the panel,

b. The Reason for Decision by the director of Liquor Licensing that a variation of licence would not have a detrimental impact to the amenity of the area - is incorrect.

c. All previous licence variation applications had been rejected by the Director of Liquor Licensing. The licensees misled authorities and objectors and negotiated a licence variation outside the appropriate channels.

d. The licensees knowingly breach the spirit of their licence conditions - cannot control patrons outside their premises that will endanger our personal and property safety and have significantly increased business at the Prince Alfred Hotel with a detrimental effect on the amenity of the area.

e. As the licence travels to the next owner we need to protect generations into the foreseeable future.

4 On 29 August 2003, the Director granted an application for transfer of licence No 31910761 in respect of the hotel to Quiet One Enterprises Pty Ltd, the present licensee (the licensee). The licence contained conditions at that time that -

Live entertainment is restricted to the nights of Friday and Saturday only. All live entertainment must cease at 1 a.m. On the nights entertainment is provided the Spring Street entry/exit door is to remain closed and used only as an emergency exit door and is to be so signed. An air lock doorway is to be installed and maintained on the Bay Street entry/exit door. The front window near where the bandstand is located is to be double glazed.

5 On 20 November 2003, the licensee made application to the Director to vary the licence in several respects including to amend the live entertainment condition. A number of objections were received by the Director to the application. On 24 March 2004, the licensee made a further application for a variation to licence (the variation application) pursuant to s 29 of the Act which replaced the previous application for variation. The application sought to "remove the current restriction which limits live entertainment to Fridays and Saturdays only, and to authorise the provision of live entertainment during those trading hours approved for the supply of liquor for consumption on the licensed premises". The effect of the variation, if granted would have been to allow live entertainment from Monday to Saturday until 1am and on Sunday until 11 am.

6 On 29 March 2004, an officer for Licensing Services wrote to the Chief Commissioner of Police and the Principal Planning Officer of the Melbourne City Council enclosing a copy of the variation application. Subsequently, an officer of the Director wrote to the licensee requiring it to display a public notice for 28 days and to write to an enclosed list of objectors and inform them of the variation application pursuant to s 36 of the Act.

7 On 15 April 2004, the Director wrote to the Chief Executive Officer of Port Phillip City Council (Council) giving it the opportunity to object to the variation application. Subsequently the Director received objections from some 20 people. The objectors raised a number of concerns including that live entertainment seven days per week would jeopardise their personal safety, increase the misuse and abuse of alcohol, destroy peace and quiet and that the licensee had demonstrated inappropriate management of intoxicated patrons and lack of any concern for the local neighbourhood. The Council and Victoria Police also objected to the application. The Council's objection was made on the basis that the proposal "would be likely to adversely and unreasonably impact on the amenity of the surrounding residential area".

8 It appears that information mornings were held by the licensee on 18 April 2004 and 8 May 2004 at the hotel to which local residents were invited to discuss the application to change the hours of trade and entertainment.

9 On 22 June 2004, the Director wrote to the licensee informing it that the Council had objected to the variation application and that she intended to strike out the application. She invited the licensee to provide reasons why the application should not be struck out.

10 On 19 July 2004, the senior planner at the Council, Mr Gutteridge, advised the Director by letter that after further discussions with the licensee, the Council had no objection to varying the licence in the following way :

The current restriction which limits entertainment to Fridays and Saturdays only, be varied to allow live entertainment, comprising and limited to Trivia nights, or Comedy or an acoustic duo till 12:00 midnight on Thursdays and till 9:00 pm on Sundays.

Council still opposed any variation of the liquor licence to allow for live entertainment on Mondays, Tuesdays and Wednesdays.

11 Mr Gutteridge informed the Director that the licensee had carried out alterations to incorporate double glazing to windows to reduce noise break out but that it was important that management ensure that all windows in the entertainment area were kept closed and doors were fitted with self-closing mechanisms. He proposed that a hotel management plan be prepared by the licensee incorporating a number of measures. He went on to say :

It was, and is the Council's position, that subject to the inclusion of conditions as suggested above, on the liquor licence for the premises, that the proposed additional live entertainment on Thursdays and Sundays would not cause material detriment to the surrounding area.

It is the Council's view that these conditions would preclude the premises operating a live music venue (other than for an acoustic duo) or a disco or club or similar, with loud amplified music.

12 In his submissions before the Tribunal, Mr Gutteridge said that the limitation on live entertainment on Thursday night to 12.00 midnight was considered appropriate because this was the time limit imposed on the adjacent Port Melbourne Town Hall for functions.

13 On 7 October 2004, a Liquor Licensing Panel member Mr Brassil provided the Director with a Report and Recommendation regarding the variation application and recommended that the licence be amended to read :

Live entertainment is restricted to the nights of Thursday to Sunday inclusive ceasing at 11:00 pm on Thursday, 1:00 am on Friday and Saturday and 9:00 pm on Sunday.

14 The recommendation was more restricted than the agreement reached between the Council and the licensee in that live entertainment on Thursday nights was restricted to 11:00pm and not 12:00pm being the time proposed in that agreement. Mr Devlin who appeared for the Director, said that the condition recommended by the Panel was on the understanding that the style of entertainment (that is, limited to Trivia nights, comedy or an acoustic duo) be enshrined in the planning permit. It is not in dispute that this did not occur. Mr Devlin indicated before me that the Director would insert the condition as to the style of entertainment in the variation if it could not be put on the planning permit.

15 The Panel also recommended the closing of the Spring Street door and the making effective the air lock door to protect the amenity of the area and that the amendment to the licence be made if and when the air lock at the premises was made effective.

16 On 11 October 2004, the Director granted a variation in the form recommended by the panel on the condition that :

The licence variation is not to come into effect until the air lock doorway on the Bay Street entry/exit is working satisfactorily and evidence that this has occurred to the satisfaction of the responsible authority is submitted to the Director of Liquor Licensing.

17 On 15 October 2004, the Director notified the Police, the Council and the objectors of the decision and gave them the opportunity to seek a review pursuant to s 87 of the Act. Subsequently, the applicant filed his application for review.

18 On 3 November 2004, Mr J Wickham and Mr K Barassi who had previously lodged objections to the application wrote to an officer of the Director requesting that the final decision of the Director include entertainment specifications for Thursday and Sunday nights, restricting those nights to comedy, trivia and acoustic duos.

19 On 19 November 2004, Mr Gutteridge wrote to the Director advising her that an inspection of the licensee premises had revealed that the air lock door off Bay Street was open and that he had advised the licensee that the door should not be propped open at any time and that the Bay Street and Spring Street doors needed to have in operation a self-closing mechanism at all times. He concluded that subject to those changes and operation, the front entry doors and air lock off Bay Street would be satisfactory to the Council.

20 On 23 November 2004, the licensee wrote to the Director informing her that the doors had been propped open as furniture was being moved outside, that the self-closing mechanisms worked well and that sound curtains had been installed behind the stage area. Subsequently an officer of Licensing Services wrote to the licensee reporting that he had inspected the premises and that the air lock door was sufficient for the purpose intended.

21 On 16 December 2004, the Director provided reasons for decision in accordance with the request from the applicant of 24 November 2004. She said :

That the granting of the application to vary the licence conditions would not detract from or be detrimental to the amenity of the area in which the premises are situated. That my decision was conditional upon further evidence from the responsible authority. That information was relevant to the question of amenity [noise] in the area in which the premises are situated.

22 The applicant contends that the licence should continue to be restricted to live entertainment on Friday and Saturday nights until 1:00 am and on no other nights.

23 The hotel is at 355 Bay Street, Port Melbourne, situated on the north-west corner of Bay Street and Spring Street North, Port Melbourne. The land is developed with the two-storey hotel, the building dating from 1866. Its first confirmed use as a hotel was in 1867 and it appears it has operated as a hotel continuously since then.

24 The hotel currently has a general licence which allows a maximum of 200 patrons. The trading hours for consumption on the licensed premises include for days other than Sundays, Good Friday and ANZAC day between 7:00 am and 1:00 am the following day, except for Good Friday morning. Live entertainment is restricted to Friday and Saturday nights. On Sundays the trading hours are between 10:00 am and 11:00 pm.

25 Surrounding land is developed as follows :

- North (along Bay Street): One and two storey Victorian era shops, some with residences above;

- West (rear): Dwellings facing to Spring Street North and Heath Street;

- East (across Bay Street): One and two-storey Victorian era terrace houses and commercial buildings

- South: The Port Melbourne Town Hall

26 The land is zoned Business 1 Zone and is within Heritage Overlay Area No 1 under Clauses 34.01 and 43.01 of the Port Phillip Planning Scheme. The use of the land for a hotel predates the introduction of planning controls for the subject site, and accordingly, the premises have existing use rights to operate as a hotel. A planing permit is not required to vary the condition of the existing liquor licence.

27 The land is situated directly opposite a Residential zone and area developed primarily for residential purposes to the east (opposite side of Bay Street) and is within 30m of a Residential zone and area developed primarily for residential purposes to the west.

28 The licensee has indicated it will consent to the following conditions being included on the licence if the variation is granted:

•

Live entertainment is restricted to the nights of Thursday to Sunday inclusive ceasing at 11pm on Thursday, 1am on Friday and Saturday and 9pm on Sunday; live entertainment on Thursday and Sunday shall be limited to Trivia nights, or Comedy, or an acoustic duo.

•

The front entry doors and airlock to Bay Street must :

- Open inwards;

- Have fully functioning self-closing mechanisms in operation at all times of the day; and

- Not be propped open at any time.

•

All windows opening off the entertainment area must be kept closed, and heavy sound curtains drawn across those windows abutting the stage area during any live entertainment.

29 The above conditions incorporate the recommendation made by the panel on 7 October 2004 restricting live entertainment to Thursday to Sunday ceasing at 11pm on Thursday and 9pm on Sunday and to the limited form of entertainment agreed to between the Council and the licensee. A hotel management plan (tendered in evidence before the Tribunal) has been prepared and put into place by the licensee in accordance with the recommendations of the Council.

30 Mr Devlin who appeared for the Director, made oral submissions and he called evidence from Sergeant Shiell of Victoria Police. Mr Johnson appeared for the licensee, Quiet One Enterprises Pty Ltd, and he called Mr Cameron Smith, a director of the licensee. Mr Gutteridge, senior planner with the Council, appeared for the Council and he made written and oral submissions. Mr Trevor Smith, the applicant, appeared for himself. He gave evidence and he called evidence from two residents, Mr Kelsey and Mr Wickham.

31 Subsequent to the hearing, I inspected the hotel and the surrounding area.

32 "Amenity" is defined in s 3A of the Act. The amenity of an area is "... the quality that the area has of being pleasant and agreeable". Section 3A(2) sets out various factors that may be taken into account in determining the issue of amenity including parking facilities, traffic movement, noise levels, the possibility of nuisance or vandalism, and the like. However, such factors are specifically stated as not being intended to limit the definition of amenity.

33 Section 4 sets out the objects of the Act. They include to contribute to minimising harm arising from misuse and abuse of alcohol and to facilitate the development of a diversity of licence facilities reflecting community expectations.

34 Section 38(1) and (1A) permit objections to the granting, variation or revocation of a licence on the grounds that such would detract from or be detrimental to the amenity of the area in which the licensed premises are situated.

35 In his written statement dated 14 March 2005 Sergeant Shiell said that the initial Police objection to the application was on the grounds that the variation would cause undue detriment to the amenity of the area and that there was a history of residential complaints in relation to noise. He said that having regard to the restrictions placed on the live entertainment on the restricted hours now permitted, Police no longer objected to the variation.

36 In his viva voce evidence before the Tribunal, he referred to an incident at the hotel on 5 February 2005. He said that the Police and ambulance were called by the hotel. The Licensed Premises Incident Report indicated that Police had been requested to attend in relation to a brawl between 15 to 20 males. At the time, men at the hotel playing pool were assaulted and 15 males were seen to be using pool cues and billiard balls as weapons. The bar manager called police and then managed to get the instigators of the fight to exit via a side door. He said that the incident did not cause him to change his view in relation to the variation.

37 He said in relation to other incidents of criminal activity relating to the hotel, that there was no long term history of complaints and that there had been a complaint about once a year for the last five years. He said that other licensees in the area did not have restrictions on live entertainment. He had performed licensing work for almost two years and he did not recall an occasion where police were called to incidents of violence relating to Trivia or comedy nights.

38 In his written statement of 21 April 2004 Mr Cameron Smith said that the decision by the licensee to purchase the hotel in August 2003 was taken because the hotel was a typical inner suburban 'pub' which had a late licence authorising trading until 1.00 am six days a week (and 11.00 pm on Sundays) and a condition allowing live entertainment on Friday and Saturday nights until 1.00 am. He said that the hotel at the time of purchase was typically a 'workers' watering hole providing only the most basic refreshments.

39 He describe how the licensee had changed the business emphasis of the hotel to concentrate on food and, to a lesser extent, entertainment and he said that the alterations included providing food 7 days a week, including lunch and dinner, and a varied style of entertainment on Friday and Saturday nights. Previously the hotel was run as a sports bar and it had a TAB type clientele. Since the alterations the hotel has attracted a more family oriented clientele. He said that the reason for the change of business emphasis was that the Bay Street area (which was essentially the main entertainment precinct in Port Melbourne) was becoming more 'gentrified' and demanded more than what was then provided at the hotel. He said that the licensee had carried out double glazing of the rear windows of the toilets which backed onto the applicant's property. The bay windows facing Bay Street had also been double glazed to help prevent noise emitting from the Hotel and sound-proof curtains had been installed to attenuate the sound emitting from the hotel.

40 He said that since the licensee commenced trading at the hotel in September 2003 no complaint has been received from any resident, other than the applicant in relation to amenity issues or noise escaping from the Hotel and that the persons involved in the incident on the 5th of February 2005 had been banned from the hotel. Mr Smith said that the clientele of the hotel. Other patrons often left by taxi and all hotel staff were instructed to call taxis for any patron requiring one. Crowd controllers ensured that patrons leaving by taxi did so quickly and quietly. Taxis travelled down Bay Street and very rarely needed to travel down any side streets where residents are located.

41 In his viva voce evidence, Mr Smith said he had been involved in managing hotels for eight years. He said that patrons demanded a service that provided meals seven days per week and an entertainment component. He said the number of people attending had increased dramatically because of the food and because the management style had increased patronage. The licensee had fully renovated the hotel which made it more family oriented with a different atmosphere. Families now came in with their young children. In addition to other changes carried out by the licensee, the two air lock doors now operated properly. He said he worked at the hotel six days per week and he knew the locals.

42 Mr Smith said that acoustic music would attract a different audience to the live entertainment allowed on Friday and Saturday nights. It was proposed to use well known comedians for comedy shows once per month and to run Trivia nights once per month or per fortnight. Acoustic nights would involve professional musicians. In his view, there was a demand for such soft entertainment. The trivia nights would be limited to 35 patrons and the comedy nights would involve dinner and a show so that there would be 35 seats and standing room. The acoustic duo would be more as background rather than a focal point music, mainly in the bar area.

43 The applicant adopted various written statements filed by him as his evidence and he also gave viva voce evidence. In essence he said :

•

Live entertainment with associated patron noise outside the hotel on Thursday and Sunday evenings will interfere with the quiet enjoyment of residential properties and preparation for work/school on the following Friday and Monday thereby affecting amenity.

•

The variation will increase misuse and abuse of alcohol, vandalism and endanger the residents and their property.

•

Previous licence variations have been deemed inappropriate by the responsible authorities on the grounds that variation will adversely affect the amenity of the area.

•

The licensee knowingly breaches its conditions of licence by jamming open the air lock front door and not locking the Spring Street entrance at 8.00 pm.

•

There is no security outside the hotel.

•

The licensee has already demonstrated inappropriate management of intoxicated patrons and it lacks any concern for the local neighbourhood.

•

The licensee seeks only a greater financial return with complete disregard for the community.

•

The licensee has acted with deception and stealth to obtain a variation.

•

Police research found crime, particularly assaults increased at hotels with live entertainment - The Age 14 April 2004.

•

Since the licensee has taken over the hotel, he has significantly increased activity at the hotel with a detrimental effect on the amenity of the area, including ineffective waste management, increased truck deliveries of supplies, kerbside trading with patrons outside the hotel on the street, increased parking pressure.

44 The applicant gave evidence that he had been assaulted by hotel patrons, his property had been damaged and last Christmas he was threatened by a patron. He contacted the licensee, gave the registration number of the assailant's vehicle but the matter was not followed up by the hotel. He said that the basic objection to the decision under review was on grounds of amenity. The proposed entertainment would increase the numbers who attended the hotel with added noise emitted from the hotel and also patrons who were intoxicated and out of control outside the hotel.

45 During cross-examination by Mr Devlin the applicant agreed that there had been dramatic changes in Port Melbourne and it catered for a wide demographic group that demanded wider entertainment and that this was part of amenity. He agreed that the entertainment being offered on Thursday and Sunday nights would appeal to a cross-section of the community and that younger and older people liked trivia nights, comedy nights and acoustic entertainment. He said that whilst such entertainment could add to the amenity, it also detracted from the amenity and in his view people would drink more if the variation was allowed. He agreed however, it was a reasonable assumption that when playing trivia people might drink less and that it was possible people might drink less at a comedy night.

46 The applicant described an increase in waste in the area outside the hotel and he said truck deliveries occurred on most days. He said he had seen people urinating in the street on a weekly basis. He was concerned that there would be an increase in numbers of patrons as live entertainment would attract more people. With such entertainment, more people would be squeezed into the hotel and he said that people would drink more if the additional live entertainment would be permitted.

47 Mr Tim Kelsey a resident living at 61 Heath Street, Port Melbourne (which is in a Residential C zone), gave evidence before the Tribunal. He expressed concern that the licensee had left the air lock door propped open and the window left open in contravention of the conditions of licence. He was concerned about patrons exiting from the side door of the hotel leading on to his property. He said that whilst the licensee was trying to mitigate problems, once patrons left the hotel it was hard for them to be controlled. He said it was clear that there was a higher risk of incidents occurring as a result of live entertainment and his conclusion was that if live entertainment was increased, the risk of loss of amenity would increase. Most incidents of concern occurred during live entertainment. He said, however, he was not qualified to discuss the differences between the different types of entertainment proposed.

48 Mr Wickham has lived at 382 Bay Street, Port Melbourne, directly across the street from the hotel for some 20 years. In a letter dated 15 December 2003 to the Director, he raised concerns about the absence of parking, noise, the possibility of nuisance and vandalism.

49 He said in evidence that the licensee had implemented some good measures, and in his view, the hotel was well run and the licensee was making valiant efforts to make it a good business. At the present time Sunday night was fairly quiet and he sought to retain that one night per week which was free of noise. Since the adjustments had been made by the licensee, including double glazing and the hanging of sound curtains, the primary issue was noise from people departing from the premises when patrons moved away from hotel control. There were also implications for parking, attendant problems with street vandalism and he referred to the fact that the houses were on a very small frontage with parking at a premium. In his view, the issues of nuisance, violence and incidents that presently occurred on Friday and Saturday nights would increase to Thursday and Sunday nights if the variation was allowed.

50 Mr Devlin submitted that the condition restricting live entertainment to the nights of Thursday to Sunday inclusive ceasing at 11:00 pm on Thursday, 1:00 am on Friday and Saturday and 9:00 pm on Sunday, limited to Trivia nights or comedy or acoustic duo balanced the concerns by objectors as to amenity issues, including noise, street activity, damage, urination in the street and the like. Mr Devlin submitted that if unspecified entertainment was allowed, for example, rock and roll, there would a greater likelihood of excessive noise. The type of restricted entertainment proposed would attract a different type of clientele, less likely to cause trouble in the hotel or when they leave. He argued that the restricted entertainment added to the amenity of the area and provided a proper balance for the purposes of the Act being the right to provide a service and make the hotel a more viable business whilst protecting amenity. He conceded that there would be some noise when the entertainment ceased at 11:00 pm on Thursday night and people left the hotel but this could be addressed by signage and supervision.

51 Mr Devlin submitted that the objects of the Act contributing to minimising harm arising from the misuse and abuse of alcohol and facilitating the development of a diversity of licensed facilities reflecting community expectations must be balanced. He said that the position of the Director was that the issues of amenity were multifaceted and amenity was not limited to the views of residents, the Police or the Council. This was apparent from the definition of amenity in s 3A. Further, the issue of amenity was not just limited to the residents of the Bay Street area and regard should be had to Mr Gutteridge's submission that the hotel was in a Business 1 Area and there was a lesser degree of amenity where business met residential zone.

52 Mr Devlin submitted that looking at the whole of the amenity issue, including the evidence that the Port Melbourne area had undergone transition and had become more affluent with the demand for food and drink and a demand for entertainment, people expected alcohol, food and entertainment in a convenient and non-intrusive way.

53 He referred to the evidence from Mr Cameron Smith and Sgt Shiell that the hotel was run properly and that the licensee was attempting to cater to the expectations of the community. This was relevant to s 4(a)(ii). He referred to the fact that Police evidence was supportive of the application and the Tribunal could take some comfort from the way in which business was run. This included that the bar manager had called the Police on 5 February 2005.

54 In relation to the possible problem of the egress of people leaving the hotel after the live entertainment, there was a patron limit of 200 people and the evidence established that patrons would leave on the western side across from the road of the residential area and egress on to the main road on the south. The direct effect on amenity was reduced as the Town Hall was on the south. He said it was acknowledged that some people who left the hotel to go west would go to the Residential zone but most people would enter the commercial area. There were some problems with amenity but not sufficient to overcome the proper balance, particularly given the conditions sought to be imposed which would make it likely that the crowd attending the entertainment would be different to the crowd that attended on a Friday and Saturday night.

55 Mr Devlin referred me to several decisions of the Tribunal including Jones v Baw Baw SC [2001] VCAT 2337, Black & Cooke v Liquor Licensing Victoria and Green Dragon Pty Ltd [2000] VCAT 459 and Nardi v Director of Liquor Licensing [2005] VCAT 323. Those decisions were useful in relation to the enunciation of the principles involved in the current application but ultimately they turned on their own particular facts.

56 Mr Gutteridge submitted that subject to conditions generally such as those included in the Director's determination of 11 October 2004 and Council letters of 19 July and 19 November 2004, the proposed increases in days and hours of live entertainment would be satisfactory and would not cause material detriment to any person.

57 Mr Gutteridge submitted that the low-key nature of the entertainment proposed for Thursday and Sunday nights did not generate a lot of noise and would tend to finish reasonably early. The conditions in relation to the front entry and airlock to Bay Street was a further expansion by Council as to the manner in which the doors should operate which would augment the condition imposed in relation to the Spring Street door and minimise noise break up.

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.

70 Overall, I accept Mr Devlin's submission that the condition agreed to by the licensee balanced residents' concerns about amenity, and that the decision of the Director should be affirmed. Accordingly my decision is that the decision of the Director is affirmed subject to the following conditions :

i

Live entertainment on Thursdays and Sundays is limited to trivia nights, comedy or acoustic duos;

ii

The front entry doors and airlock to Bay Street must :

i. Open inwards;

ii. Have fully functioning self-closing mechanisms in operation at all times of the day; and

iii. Not be propped open at any time.

iii

All windows opening off the entertainment area must be kept closed, and heavy sound curtains drawn across those windows abutting the stage area during any live entertainment.