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Hyper Bowl Australia, Chermside
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Appeals by D Long, M Phillips and J & S Fardoulys against the decision of the chief executive to grant an application for an Extended Hours Permit (on a Regular Basis) for premises known as Hyper Bowl Australia at Westfield Chermside Shopping Centre

Appeal Nos: 13, 20 & 25 of 2000/01
Hearing: 7 November 2001
Tribunal: Ms A Lindon - Presiding Member
Mrs G Spender
Mrs J Harrington
Decision: 16 November 2001
 
         
     

Background to the Appeal

1.  On 4 October 2000 Hyper Bowl Australia Pty Ltd lodged an application for an On-Premises (Other Activity) licence and for an extended hours permit (on a regular basis), and the applications were in respect of premises known as Hyper Bowl Australia located at Shop 302, Westfield Chermside Shopping Centre, Gympie Road, Chermside. The extended hours permit application sought trading hours of 9.00 am to 12 midnight, Sunday to Thursday, and 9.00 am to 2.00 am Friday and Saturday.


2.  The application was advertised in accordance with Section 118 of the Liquor Act 1992 ("the Act"). One petition with 23 signatures and one objection addressing both amenity and public need concerns were raised opposing the application.

3.  The Brisbane City Council ("the Council") and the Assistant Commissioner of Police, Metropolitan North Region were asked to comment on the application pursuant to Section 117(1)(a) of the Act. The Chief Executive Office of the Brisbane City Council had no objection to the application however the local councillor requested a six month trial of the trading hours to 2.00 am as he had concerns regarding noise from the premises and trading beyond 11.00 pm.

4.  The Assistant Commissioner of Police, Metropolitan North Region did not object to the application.

5.  On 7 February 2001 the Chief Executive granted the application for an On Premises (Other Activity) Licence – Ten Pin Bowling. The approved trading hours were 9.00 am to 12 midnight, Sunday to Thursday with a six month trial period for extended hours from 9.00 am to 2.00 am, Friday and Saturday which expired on 7 August 2001. Further comment was sought from the Brisbane City Council and advice was received on 17 July 2001 that the Council and Councillor Hampson had no further concerns with extended trading to 2.00 am. On 7 August 2001 the Chief Executive determined to grant the extended hours permit on a permanent basis.

6.  In his statement of reasons for decision, provided to the Tribunal, the Chief Executive stated the following:

  • The application met all Division requirements in terms of the information required to be supplied;
  • The Assistant Commissioner of Police did not provide an objection to the application;
  • The Brisbane City Council was satisfied with the premises operation during the trial period;
  • The Department was satisfied that the amenity (in terms of Section 119 of the Act) would not be unduly affected;
  • The Department was satisfied that the applicant demonstrated the existence of need pursuant to Section 116 of the Liquor Act 1992 for extended hours.

7.  Notices of Appeal were lodged with the Liquor Appeals Tribunal by Mrs D Long on 22 August 2001, Ms M Phillips on 27 August 2001 and Mr & Mrs J Fardoulys on 6 September 2001.

 
         
      Issues for Determination in this Appeal

8.  The application is one to which Section 116 of the Act applies, pursuant to Section 116(1)(c). On l July 2001 subsections (2), (3) and (4), of Section 116 were amended. Under the former Section 116(2) an applicant for an extended hours permit (on a regular basis) was required to establish that the permit applied for "is necessary to provide for the reasonable requirements of the public for liquor and related services in the locality to which the application relates." Under the new Section 116(2) an applicant for an extended hours permit (on a regular basis) is required to satisfy the Chief Executive "that it is in the public interest for the application to be granted." The Chief Executive in making his determination to grant the application on 7 February 2001 applied the public need test under the former Section 116(2) and was satisfied in terms of that Section. At the end of the trial period on 7 August 2001, the Chief Executive granted the application for the Extended Hours Permit to allow trading until 2.00 am on Friday and Saturday.

9.  The appellants lodged their appeals after 1 July 2001 and the question arises as to whether the Tribunal, in rehearing the application, should apply the public need test under the former Section 116(2) or the public interest test under the new Section 116(2). As the issue as to the applicable law was not argued before the Tribunal, we have not reached a concluded view on the issue and it is not necessary for us to do so because, in the circumstances of this case, we have reached the view discussed below that we are satisfied under both the public need and the public interest tests.

10.  Having satisfied itself that the requirements of both the former and the new Section 116 have been met, the Tribunal must proceed to consider the matters specified in Section 121(5) (d),(e),(f) and (g), which are objections to the grant of the application, comments received from Police and the Local Government Authority and the impact on the amenity of the community concerned if the licence were to be granted.
 
         
      Reasonable requirements of the public

11.  Hyper Bowl Australia is a 26 lane ten pin bowling centre located on the top level in the Westfield Chermside Shopping Centre and is part of the new dining and entertainment precinct at the Shopping Centre which includes five restaurants, an Irish tavern and a cinema complex. The bowling centre incorporates a restaurant, which seats around 70 indoors and 40 in the outdoor area. There is an area for amusement machines and light entertainment in the form of background music, soloists and small bands.

12.  Located 10 kilometres from the CBD, Chermside has a diverse and high permanent residential population and there is a strong demand for a range of retail facilities and services in the location. Although Chermside itself has not increased in population from 1996 to 1998, Australian Bureau of Statistics figures for all of the surrounding areas in the locality show an increase of from 1.9% to 7.2% for that period according to the public need submission prepared by Liquor and Gaming Specialists Pty Ltd, and contained in the Appeal Book. The submission also states that the primary market the applicant intends to cater for is the Shopping Centre which attracts about 110,000 visitors from the northern suburbs each week and this number was expected to increase when all 220 speciality shops in the Centre were operational. The Shopping Centre is easily accessible and has in excess of 3000 car parking spaces available. It is well serviced by taxis and around 200 buses per day pass through the bus interchange located on this site.

13.  There is only one other licensed bowling alley in the vicinity approximately 2.8 km to the south. In the Brisbane City area there are seven bowling alleys with On Premises (Other Activity) Licences. The applicant sought extended trading hours from 9.00 am to cater for early morning bowlers, champagne breakfasts, office and team functions and meetings. The extended trading hours to 2.00 am on Friday and Saturday nights were sought to cater for people wishing to bowl later at night, including patrons returning from the city later, movie patrons, presentation nights, post competition celebrations and teams based at the centre who will use the premises for functions.

14.  Having taken into account the matters to which it must have regard in both the former and the new Section 116 of the Act, the Tribunal is satisfied that the extended trading hours permit (on a regular basis) is necessary to provide for the reasonable requirements of the public in the locality concerned and that it is in the public interest for the application to be granted.
 
         
      Amenity Issues

15.  The nominee for the licence, Mr B Cutajar appeared before the Tribunal. In his evidence he said most of his patrons leave the premises by 11.00 p.m. to 11.30 p.m. He said his premises are adjacent to the cinema complex which has 16 cinemas with seating capacity of 3,500 seats and that most of the vehicles in the parking area adjacent to his premises late at night are from the cinemas which finish around midnight. He said liquor can be purchased from the cinemas and patrons can also go downstairs to Gilhooleys Irish Bar. However, he said in comparison, his premises is very small and any problems emanating from Hyper Bowl would be minor because of the small number of people involved. He said he has not had any complaints from the public nor from the Police regarding the trading hours. He said he strives to ensure his premises does not have problems with underage drinking or other licensing breaches. He said that he has security personnel on Friday and Saturday nights because there are more patrons on site. Also, Westfield Shopping Centre management has its own security personnel who are only a phone call away if needed.

16.  Mr Cutajar said this location is an entertainment precinct and is meeting people’s needs and that he requires the extended hours on Saturday and Sunday nights to service his customers who wish to bowl later at night, otherwise he would not have made the application. He does not accept the objectors’ concerns that his premises contributes to increased traffic noise late at night in the objectors’ street. He said at times there would be more staff cars than patrons’ cars leaving the parking area during the extended hours.

17.  Mr M Gillart, director of Hyper Bowl Australia Pty Ltd also appeared before the Tribunal. He said that the premises normally closes between 1.00 am and 1.30 am on Friday and Saturday to allow for teams to finish their games and occasionally for special events, such as Halloween night held on a recent Saturday night where 98 people attended. He said that normally after midnight there would only be 15 to 20 people left in the premises and that groups, usually of four people, dispersed at different times as they completed their games. He said that there are six staff members who could leave as early as 1.00 am depending on patronage. He said that most patrons leave the premises by car and the closest way out of the car park from Hyper Bowl is via the rear of their premises onto Banfield Street exit which leads directly onto Gympie Road.

18.  Mr Gillart said that Division posters regarding responsible service of alcohol are posted on the walls of the premises, and all new staff are briefed on Liquor Licensing requirements. He said a new food and beverage manager has only recently been appointed and has appropriate skills in service of alcohol.

19.  Mr Fardoulys, an appellant, relied on his letter of objection received by the Liquor Appeals Tribunal on 12 October 2001. He said that Bouchard Street in which he and the other objectors reside, is a cul-de-sac directly opposite the Shopping Centre. He lives at 32 Bouchard Street which is at the closed end of the street. He said that people departing the Shopping Centre drive into Bouchard Street thinking it is a through road, then have to turn around and drive down the other side of the street to exit, causing disturbance to the residents of Bouchard Street. When asked about the times of the traffic disturbance he said it was during the day and early night time.

20.  Appellant, Mrs Long who resides at 12 Bouchard Street said she objected to the traffic that comes into Bouchard Street all hours of the day causing noise and squealing of tyres. She said she can’t get to sleep at night till the Shopping Centre closes down. She thinks some drivers are looking for the access to the Shopping Centre when they mistakenly drive into Bouchard Street. She said there are "No Through Road" signs posted at the entrance to the street. She said the Council has put "no parking" signs on her side of the street at the entrance to Bouchard Street covering the parking area up to 14 Bouchard Street, but people park beyond the signs and some drivers ignore the "no parking" signs and illegally park.

21.  Mrs Long said, since the renovations of the Centre during 2000, in addition to noise she has seen broken beer bottles near the footpath on Bouchard Street which had not occurred previously. Mrs Long conceded the patrons of the bowling alley may not currently be the cause of the disturbances, but said she is concerned about patrons from the bowling alley partying on at Gilhooleys Irish Bar ( which opened in September 2000, and has late trading hours), and then causing disturbances in her street as there is nothing to stop them doing so.

22.  Mrs Phillips, also an appellant, who lives at 14 Bouchard Street said people park in Bouchard Street at 11.00 pm at night and create noise locking cars with remote controls and chatting outside their cars and she believes they are bowling patrons. She said that there was one occasion at night when she observed people, with liquor in their hands, coming from the Shopping Centre and returning to their car on Bouchard Street, and she overheard them discussing bowling. She said there has been a definite increase in traffic from Banfield Street onto Gympie Road which causes more noise than previously since the extended hours began.

23.  Liquor Licensing Officer Mr D Tennison represented the Chief Executive in support of the Chief Executive’s decision. Mr Tennison relied on material from the Division’s file and contained in the Appeal Book. He also tendered a statement regarding his search of the Division’s database in relation to the subject premises and noted that no complaints have been received in respect of the premises regarding the extended hours since 7 February 2001.

24.  Mr Tennison said the Division had had regard to the fact that neither the Council nor the police had objected, but that it had noted the objection of the local Councillor and therefore the trial period had been imposed. At the end of the trial period, the Division re-contacted the local Councillor who had no further concerns regarding the application. He said the Division is mindful that this premises is in an entertainment centre within a shopping centre and the type of people who will be using this facility are engaging in a sport which requires some skill. Liquor is ancillary to the main activity which is bowling and the skill required would discourage a bowler from drinking too much alcohol. He said the Division had restricted amplified entertainment by conditions imposed on the licence. He said after midnight when the cinema patrons depart there is more than ample parking for patrons who might frequent the Hyper Bowl during the extended hours and there are ample exits from which traffic can disperse onto Gympie Road in order to travel towards or away from the City.
 
         
      Conclusion

25.  The Tribunal in determining this appeal must have regard to the concerns of the objectors whilst balancing the needs of all persons in the locality. The Tribunal has given full consideration to the objectors concerns. Although their concerns are genuine, and there was evidence that one group of people overheard talking about bowling returned to a car in Bouchard Street carrying liquor, the Tribunal is not persuaded on the basis of the material placed before it, that there is sufficient evidence that patrons of Hyper Bowl are the cause of disturbance to residents of Bouchard Street during the extended trading hours.

26.  Having taken into account all the matters to which it is required to have regard pursuant to Section 121(5) of the Act, the Tribunal is satisfied that the extended trading hours will not unduly impact upon the amenity of the locality.
 
         
      Decision of the Tribunal

27.  The Tribunal orders that:

(a)  the appeal be dismissed;

(b)  the decision of the Chief Executive made on 7 August 2001 be confirmed.
 
 
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Current to 26 August 2003
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